delivered the opinion of the court.
The plaintiff in error was indicted in the United States Circuit Court for the Eastern District of Texas, at the term commencing on the 20th of November, 1.893. The indictment charged the defendant with the crime of murder in killing one Joe Gaines on-the 22d of August, 1893, in Pickens County, in the Chickasaw Nation, in the Indian Territory, the same being annexed to and constituting a part of the Fifth Circuit, and annexed to and constituting a part of the Eastern- District of Texas for judicial purрoses. The defendant was tried at the Circuit Court held for the Eastern District of Texas in April, 1895, and was convicted by the jury of murder, as charged in the indictment, and sentenced to be hanged. He then sued out a writ of error from this court. It will be necessary to-notice but one exception taken by counsel for the plaintiff in error upon the trial After the evidence was in, he requested the court to submit to the jury a charge upоn manslaughter, “ but the court refused to submit that issue to the jury, to which action of the court in failing and refusing to submit to the jury such charge, the defendant at the time excepted.”
The question is whether the court erred in refusing this request. The evidence as to manslaughter need not be un-contradicted or in any way conclusive upon the question ; so long as there is some evidence upon the subject, the. proper weight to be given it is for th.e jury to determine. If there were any evidence which tended to show such a state of facts as might - bring the crime within the grade of manslaughter, it then bécame a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder. It is difficult to think of a case of killing by shooting, where both men were armed and both in readiness to shoot, and w-here both did shоot, that the question would not arise for the jury to answer, whether
By section 1035 of the Revised Statutes of the United States it is enacted that
“
in all criminal causes the 'defendant may be found guilty of any offence, the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged:
Provided,
That each attempt be itself a separate offence.” Under this statute the defendant charged in the indictment with the crime of murder may be found guilty of the lower grade of crime, viz., manslaughter. There must, of course, be some evidence which tends to bear upon that issue. The jury would not be justified in finding a verdict of manslaughter if there were no evidence upon which to base such a finding, and in that event the court would have the right to instruct thе jury to that effect.
Sparf
v.
United States,
The ruling of the learned judge was to the effect that, in this case, the killing was either murder, or else it was done in the course of self defence, .and that under no view which could possibly be taken of the evidence would the jury be at liberty to find the defendant guilty of manslaughter. The court passed upon the strength, credibility and tendency of the evidence, and decided as a matter of law what it seems to us would generally be regarded as a question of fact, viz., whether under all the circumstances which the jury might, from the evidence, find existed in the case, the defendant was guilty of murder, or whether he. killed the deceased, not in self defence, but unlawfully and unjustly, although "without malice. The presence or absence of malice would be the material consideration in the case, provided the jury should reject the theоry of self defence, and yet this question of fact
A review of some of the evidence stated in the bill of exceptions is necessary in order to discover whether there was justification for this holding by the learned judge. It may be -premised that we do not give very much of the evidence tending to show malice in thе defendant and that which tended to show an intentional and deliberate murder of the deceased by him. We give only so much of the evidence as is necessary to permit an intelligent view of the transaction and of that portion of the evidence in addition which might be regarded as tending to show that the defendant was only guilty of manslaughter and not of murder. If there were some appreciable- evidence uрon that subject, its proper weight and credibility were for the jury.
There was evidence tending to show the following facts: The deceased was a deputy United States marshal. One B. D. Davidson was a lawyer by profession and a commissioner of the United States for one of the territorial courts. On the 22d of August, 1893, Davidson was at Paul’s Yalley in the Indian Territory. He knew the defendant, and he was also acquainted with Joe Gaines, .the deceased. Davidson saw the defendant in the evening of that day at his (Davidson’s) hotel. A man named George Mitchell had been bound over by Davidson, and had failed to give a proper bond, and Mitchell came to him and asked if he would take John Stevenson, the plaintiff in error, on the bond. Davidson told him he would if Stevenson could justify. Mitchell left, and soon thereafter brought Stevenson around, who told Davidson he had some' personal property — he didn’t know what it was exactly- — • but it did not amount to $500 above exemptions and liabilities. Davidson told him he • would have to schedule other property, and plaintiff in error thought he ought to take a farm he had, and did not like Davidson’s refusal, and went off. That same-night, after supper and about 9 o’clock, while Davidson was talking with othér persons, plaintiff in error ■came to the door and commenced cursing аnd abusing Davidson, saying, as Davidson testified, “ everything he could put
Another witness says that soon after Gaines left Davidson’s room for the purpose- of arresting Stevenson, he (Gaines) and the plaintiff in error were seen together; it was about 9 o’clock, after dark; they were standing on the sidewalk .back of ijnderwood’s drug store;- when the witness first heard Stevenson speak the latter said, “ Don’t draw that pistol; if you do I -Will cut you.” Stevenson and the deceased were standing on the sidewalk then; the witness walked into the middle of the street and said to Stevenson, “John, put up your knife and go home and behave .yourself.” They then walked over to where the witness was, Stevenson holding with his left hand to Gaines’ right arm; Stevenson was holding a knife in his right hand; after they came over, to
Immediately after the first altercation had taken place between the parties, and they had separated, the plaintiff in error went into a saloon and called for cider, and wanted everybody to come up and drink; he made a general invitation. At that time he seemed, as thе witness described it, “to be excited and mad.” He had his gun in several positions, and just before the killing had it in his right hand. This was within a very few minutes after the. first altercation took place. While the plaintiff in error was still in the saloon,' and after he had given a general invitation to come up and
Another witness testified,' “The ball from Gaines’ pistol imbedded in the counter, missing Stevenson five or six inches.”
The testimony of another witness was as follows: “ I was in Paul’s Valley the night of the shooting; I saw the deceased at the Underwood drug store about half an hour before the killing; deceased said, ‘ I thought I would stay a few minutes and maybe Stevenson will come baok; ’ he says, ‘ I оught to have killed the son of a bitch when he was herd awhile ago, and if he comes back I am going to kill him.’ I was at Bandy’s saloon ; saw the deceased as he approached; saw one shot fired; deceased came not in a run but in a kind of trot, with his pistol in both hands; as he approached the door in a trot he threw his pistol in' and fired ; he said.nothing; I did not see where the defendant was standing at the time of the shooting; lie had ordered cider just a moment before; I heard two shots close together; the first came from the pistol; after that another shot from the inside.”
This is a portion of, but not all, the evidence given upon the trial tending to show the circumstances under which the killing was done. Was there enough, in any view that could be taken of such evidence, to require the submission of the question of manslaughter to a jury? We think there was, and the request of counsel for plaintiff in error to submit that issue to the jury should have been granted. We do not mean to intimate an opinion as to what the jury ought to find upon
Manslaughter at common law was defined to be the unlawful and felonious killing of another without any malice, either express or • implied. (Wharton’s American Criminal Law, 8th ed. § 304.) Whether there be what is termed express malice or only implied malice, the proof to show either is of the same nature, viz., the circumstances leading up to and surrounding the killing. The definition of the crime given by § 5341 of the Revised Statutes of the United States is substantially the same. The proof of homicide, as necessarily involving malice, must show the facts under which the killing was effected, and from, the whole facts and circumstances surrounding the killing the jury infers malice or its absence. Malice in' connection with the crime of killing is but .another name for a certain condition of a man’s heart or. mind, and as no one can look into the heart or mind of another, the only way to decide upon its condition at the-time of a killing is to infer it from the surrounding facts, and that inference is one of- fact for a jury. The presence or absence of this malice or mental condition marks the boundary which separates the two crimes of murder and manslaughter. As we have already said, there may be. a case of killing by shooting where the
In
Brown
v.
United States,
In this case, the plaintiff in error was frеsh from an altercation with the deceased, the one having a knife and the other a pistol, and each had threatened to use his weapon upon the other. The plaintiff in error, by reason- of the previous circumstances, was laboring under great excitement at the saloon, and, as one of the witnesses says, “seemed to be mad.” The deceased came up to the saloon door аnd at once shot his pistol into the room, and the bullet came within a few inches of the head of the plaintiff in error, who immediately fired his rifle in the direction of the deceased. The ruling of the trial judge in effect was to say that as matter of law there was nothing in all this evidence, if true, which would permit the jbry to find that the plaintiff in-error when he fired his rifle was so much under the influence of sudden passion, caused by these circumstances and by this assault upon him, as not to have been actuated by that malice which the law defines as a necessary ingredient in the crime of murder. Is it perfectly plain and clear,
as a conclusion of law,
that shooting at another undér circumstances such as were detailed by
It is оbjected that while the evidence above set forth was proper to be submitted to the jury upon the issue of self defence, it was not of that character to even raise an issue as to the grade of the crime, if the theory of self defence were not sustained. We do not see the force of the objection. The fact that the evidence might raise an issue as to whether any crime at all was committed is not in the least inconsistent with a claim that it also raised an issue as to whether or not the plaintiff in error was guilty of manslaughter instead of murder. It might be argued to the jury, under both aspects, as an act of self defence and also as one resulting from a sudden passion and without malice. The jury might reject the theory of self defence, as they might say the shot from the pistol of the deceased had alreаdy been fired and the plaintiff in error had not been harmed, and, therefore, firing back was unnecessary and was not an act of self defence. But why should the other issue be taken from the jury and they not be permitted to pass upon it as upon a question of fact ?
It seems to us quite plain, that an assault upon another by means of firing a pistol at him, is naturally calculated to excite some kind of passion in the one upon whom such an assault is made. It might be one of anger or it might be terror. If either existed to a sufficient extent to render the mind of a person of ordinary temper incapable of cool reflection, it might be plausibly claimed that the act which followed such an assault was not accompanied by the malice necessary to constitute the killing murder. • Whether such a state of mind existed in this case, and whether the plaintiff in eri;or fired the
A judge may'be entirely satisfied from the whole evidence in the case that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter' by reason of. any absence of maliсe; and yet if there be any evidence fairly, tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.
It is also objected that as all the testimony is not set forth in the bill of exceptions, it must be assumed there was some which was given on the trial that would show there was no issue of manslaughter in the case. The evidence which has been returned does, in our opinion, show the existence of such an issue, and if there were other and further evidence of a different nature, which is not in the bill of exceptions, the question as to which should be credited was for the jury, and should not have been taken from it by the court. The plaintiff in error may have been guilty of murder, there was certainly sufficient evidence on that issue to render it necessary to submit it to the jury. We have no power and no inclination to pass upon that question of fact. We only decide that the question as to the grade of the crime, whether murder or manslaughter, should have been submitted to the jury as well as the question of self defence.
Tor the error in refusing to do so, the judgment of conviction must be
Reversed, and the cause remanded to the court ielow with instructions to grant a new trial.