Williams v. United States , 4 Indian Terr. 269 ( 1902 )

Townsend, J.

The appellant has filed two assignments of error, which are as follows: First assignment of error: “The court erred in charging the jury as follows: ‘Threats by the deceased against the life of the defendant, even though made in his hearing, would not, by themselves, justify the taking of his life by the defendant. Threats made by the deceased are competent evidence to be considered by you in determining the condition of mind and motive of the deceased at the time of the killing; but, unless such threats were succeeded by some overt act, they would not justify homicide, or even a similar assault.'” Second assignment of error: “The court erred in permitting counsel for the government, in his argument to the jury, to comment upon the character of the defendant for peace and good order, the defendant not having his character for peace in evidence.”

The appellant insists that the giving of the instruction alleged as the first assignment of error limits the right of the jury to consider the threat made by the deceased in the- presence of the defendant for any other purpose than to determine the condition of mind and motive of the deceased at the time of the killing; and that it fails to tell the jury in plain and direct terms that, if the deceased did threaten the life of the defendant, and accompanied that threat with an act indicating a present purpose and ability to carry it into execution, then the defendant would have the right to act in his self-defense, and kill the deceased upon the ground of reasonable apprehensions of danger. Has not appellant misapprehended said instruction? He seeks to limit it to the “threats made by deceased in the presence of the defendant.” The first clause of said charge is as follows: “Threats by the deceased against the life of'the defendant, even though made in his hearing, would not by themselves justify the taking of his life by the defendant.” This is clearly correct because, unless such threats were succeeded by some overt act in an attempt to carry same into execution, it would not justify the appellant in killing the deceased upon the ground of reasonable apprehension of danger. “ Where the offense consists of an attempt to do injury, there must be, as in other cases of attempt, something more than a mere intention. Some step must be taken toward carrying out the intent. Thus, mere preparation is not ■enough, nor mere threats unaccompanied with any offer of violence, nor the presentation of a dangerous weapon without manifestation of intention to use it, or accompanied with language indicating the intention not to use it. But pointing a loaded weapon, with words indicating the intention to discharge it, is enough, without an attempt made to actually discharge it; the* further prosecution of the attempt being prevented by interference. Mere words will not constitute an assault, but words may be important as giving color to acts, and may make that an assault which would not otherwise be one. The line of ■criminality is to be drawn between menace only and violence begun to be executed.” Section 232, McClain, Cr. Law. “To warrant taking life in self-defense, the danger must be imminent. Mere words or gestures, however insulting, not indicating immediate danger to the person assailed, will not be sufficient; neither will threats which do not indicate a present purpose to carry them out.” Section 303, Id. But such communicated threat is always admissible to show the motive of appellant. “Evidence of threats by the deceased, whether made to the accused or others, and communicated to him, is always admissible to show the defendant's motive.” Section 326, Underh. Cr. Ev. But there was a threat proven that was uncommunicated to the defendant, as follows: “Q. Did you have any conversation in the room downstairs- that morning with Mr. Luke in regard to this defendant? A. Yes, sir. Mr. Humphrey: We object to that. The Court: It is competent. Mr. Carr: State what it was. The Court : Just tell what the deceased said. Mr. Carr: Q. Tell what the deceased said. A. He asked me if I would take a drink of cider, and I said I didn't care if I did, and we took a drink, and he picks up this pistol behind the bar, and I said, ‘Bill, what are you going to do with that — ■ Mr. Humphrey: Your Honor, this man is telling what he said. This is a dead 'man. We can’t bring him here to contradict it. The Court: You can’t tell what you said. Tell what the deceased said. Sometimes we have to relax the rule in order to make it intelligible. That is the rule. The court may allow some other matters in order to make it intelligible. Mr. Carr: Q. What did Luke say? A. I asked him what he was going to do with that, and he said, ‘If everything don’t work right, I am going to kill that son of a bitching partner of •'mine.’ Q. Do you know who his partner was? A. Mr. Williams, 1 suppose. Q. Do you know? A. They was partners. Q. Partners in that gambling house, were they? A. Yes, sir.” The court is always required to tell the jury the law applicable to the facts proven, and the next clause of said charge undoubtedly had reference to said uncommunicated threat, as follows: “Threats made by the deceased are competent evidence to be considered by you in determining the condition of mind and motive of the deceased at the time of the killing.” “Uncommunicated threats may be received to corroborate those communicated, and to show the mental condition of the deceased. Sometimes the former may be regarded as of the res gestie, explaining some act already in evidence; as, for example, to show the mental state of the-deceased when the question is, did he intend to harm the accused, and was he the attacking party in the affray during which he was killed? Uncommunicated threats are then relevant to show he provoked the affray, or to explain the intention 'with which he participated in it, or to illustrate the character of the attack.” Section 326, Underh. Cr. Ev. “Threats made by deceased are admissible in cases of doubt to prove that the deceased made the attack. Threats made by the deceased against the defendant are admissible to prove that the deceased was seeking the life of the defendant, though such threats were not known by the defendant until after the killing.” See Hughes, Cr. Law & Proc. § 131. “There are cases, however, which hold that uncommunicated threats made by deceased against the defendant are admissible as tending to show the intention and animus of deceased. The violent, vicious, or lawless character of deceased as known to defendant before the homicide may be proven for the same purpose as antecedent threats; that is, to show the apparent danger to the person assailed. But there must be also proof of some overt act. Moreover, where the homicide has been committed in an encounter, and defendant claims to have been acting in self-defense, but it does not appear which was the aggressor, the character -of the deceased as a violent man may be shown as indicating that it was he who brought on the conflict, and that defendant acted in necessary self-defense. And previous threats, not communicated, are admissible under the same circumstances for the same purpose. But antecedent threats, or the bad character of deceased, not known to the defendant, are not thus admissible according to most authorities, unless the circumstances of the homicide are such as to leave it in doubt which party was the aggressor.” Section 307, McClain, Or. Law. The appellant says he is not relying upon uncommunicated threats, but this would not excuse the court from instructing the jury upon all the law applicable to the evidence. Appellant says, “The threat upon which we rely is a threat made to the defendant, accompanied by a hostile demonstration,” and briefly quotes the evidence of the threat made at the time of the killing, and says, “The defendant has a right to an instruction applicable to his own evidence, and based upon the hypothesis that it is true.” In our judgment, the court very fully complied with the law in this respect by giving the following charges: “If you believe from the evidence that the defendant did not start or provoke the quarrel with the deceased, but that the deceased began quarreling with the defendant without just cause; that deceased cursed defendant, applying to him a foul epithet, and threatened to kill defendant; that the deceased had a revolver in his pocket; that he arose from his seat, and put his right hand to his right pants pocket in a threatening manner, and attempted to draw his pistol for the purpose of shooting defendant, — then and in that case the defendant had a lawful right to defend himself, even to the extent of taking the life- of the deceased.” “In order to justify the defendant in taking the life of William Luke, it is not necessary for the jury to find that said William Luke did have a pistol in his pocket at the time of said killing, or that the defendant was then and there in actual danger of losing his life or of receiving serious bodily injury at the hands of said Luke; but it is sufficient in law to justify the defendant in taking the life of the said Luke, if, from the words and acts of the. said Luke at the time, the defendant had reasonable grounds to believe, and in good faith did believe, that the said Luke was then and there about to make an unlawful deadly assault upon him, the said defendant; and in determining how this may be you must view the facts and circumstances of this case as they then reasonably appeared to the defendant.” “To justify the defendant in slaying the deceased, the deceased must, at the time of the fatal shot, have been making some overt demonstration, which would have led a reasonable man similarly situated (and the defendant acting in good faith, and viewing the situation from his standpoint), to believe that his life was in imminent danger or that he was in imminent danger of receiving great bodily injury.” Appellant insists that the latter portion of the foregoing charge on threats is negative in character, and uncertain, if not unintelligible in meaning. Said portion of said charge referred to is as follows: “ But unless such threats were succeeded by some overt act, they would not justify homicide, or even a simple assault.” In our judgment the following instruction given by the court was sufficiently plain for any intelligent jury to comprehend the same, if not the counsel for appellant. It is as follows: “You are instructed that what is or is not an overt act of violence — that is, what acts on the part of a person slain would justify the taking of his life — varies with the circumstances of each particular case. Under some circumstances a slight movement may justify instant action because of reasonable apprehension of danger; under other circumstances this would not be so; and it is for the jury passing upon the weight and effect of the evidence to determine how this may be.”

The appellant cites only two Indian Territory cases to support his second assignment of error. These eases pass upon the question of the extent to which a cross-examination of the defendant may go for the purpose of affecting his credibility when he offers himself as a witness in his own behalf. Judge Lewis in the case of Oxier vs U. S., 1 Ind. Ter. 93, (38 S. W. 333),— being the first case cited, — says: “As to the question whether a witness could be asked in cross-examination if he had been arrested for larceny, we concur in the conclusion of the trial judge that such question may be asked; that the answer of the witness cannot be contradicted where the question is simply for the purpose of affecting his credit; and that the witness in such case may claim his privilege not to reply, if he choose. This conclusion is believed to be supported by the better reason, is approved by all the text-writers and by the weight of judicial opinion. 1 Best, Ev. § 130; Steph. Dig. Ev. p. 225; 1 Greenl. Ev. § 459; 1 Phil. Ev. 289; 1 Thomp. Trials, § 458; Carroll vs State (Tex. Cr. App.) 24 S. W. 100, 40 Am. St. Rep. 786; Brandon vs People, 42 N. Y. 265; Real vs Same, Id. 270; Wilbur vs Flood, 16 Mich. 40, 93 Am. Dec. 203; State vs Taylor (Mo. Sup.) 24 S. W. 449.” And" Chief Justice Springer, in concurring with Judge Lewis on that subject, in the same case, stated the law as follows: “It is a well-settled doctrine in this country that a witness may be cross-examined as to specific facts tending to disgrace or degrade him, for the purpose of impairing his credibility, though these facts are purely irrelevant and collateral to the main issue; also, that the extent to which such questions may be allowed is to be determined by the discretion of the trial court, which commits no error unless it abuses its discretion; that the witness may claim the privilege of declining to answer when the court allows such question, but that, when answers are called for which are material to the issue, there is no privilege. See Steph. Dig. Ev.' (Am. Ed.) p. 225, note 1, and numerous American authorities there cited, in which the subject is fully discussed.” Oxier vs U. S., 1 Ind. Ter. 96, (38 S. W. 334). In the case of Oats vs U. S., 1 Ind. Ter. 152, (38 S. W. 673), — being the other case cited, — Judge Lewis says: “The point presented was fully considered in the case of Oxier vs U. S., 1 Ind. Ter. 85, (38 S. W. 331.)” See, also, the following: “It is a fundamental principle of the criminal law that the character of a defendant cannot be impeached or attacked by the state unless he puts his character in issue either by becoming a witness in his own behalf or offering evidence in support of his character.” See Hughes, Cr. Law & Proc. § 3155. “In most cases evidence involving the whole moral character of the witness will be received upon the reasonable theory that a man who is addicted to vicious habits, or is prone to commit immoral acts, may be presumed to have lost respect for truth, and to be ready to perjure himself when it is to his interest to do so.” SeeUnderh. Cr. Ev. § 237. “The accused, when testifying in his own behalf, waives many of, the constitutional privileges which belong to him as one accused of crime.” See Id. § 60. “A defendant may be questioned as to specific acts calculated to discredit him. Thus, his previous arrest or indictment, his conviction of a felony, a previous imprisonment in a penitentiary or house of correction, his prior contradictory statements, disorderly actions, or the commission of offenses similar to that charged, attempts to bribe witnesses or simulation of .insanity, may all be, brought out by questions put to him on his cross-examination, to show what credit his evidence should receive.” See Id. § 61. “In the light of authority and reason, a defendant, who, at his own option, becomes a witness, occupies the same position as any other witness, is liable to cross-examination on any matters pertinent to the issue, may be contradicted and impeached as any other witness, and is subject to the same tests as other witnesses.” See Hughes, Cr. Law & Proc. § 3011. The following are some of the reported cases, and we believe fully cover all the law upon this subject: In the case of Parker vs State (Ind.) 35 N. E. 1106, the supreme court says: “The appellants, on the trial of the causé, testified in their own behalf, and the state on cross-examination, over their objection, was permitted to ask them as to certain arrests and prosecutions against them occurring in the past, for the purpose of discrediting then-testimony. It is contended that in this ruling the trial court erred. We cannot agree with the appellants in this contention. The testimony of an accused who testifies in his own behalf should be subject-to the tests applied to the testimony of any other witnesses. It is not to be supposed that the testimony of a witness who is morally depraved, and an habitual law breaker, as a rule, be given the same credit as a witness who is of known moral character. It is proper within the bounds of propriety, to be controlled by the trial court, that the character and antecedents of a witness may be subject to a test on cross-examination, and that questions which go to exhibit his motives and interests, as well as those tending to show his character and antecedents, should be allowed. The extent to which such cross-examinations shall be allowed is largely in the discretion of the trial court.” In the case of Crump vs Com. (Ky.) 20 S. W. 390, the court said: “Having assumed the attitude of a witness, appellant was, as has been expressly held by this court, properly subjected to the same tests as any one testifying, and evidence as to her reputation for morality and virtue was therefore competent.”

The appellant insists that counsel for the government commented upon the character of appellant for peace and good order, and that the same was error. The comment to which exception was taken is as follows: “Moman Pruiett, Esq., of counsel for the government, used the following language: ‘Luke is before you as a peaceable man. The defendant is before you as a man who has been arrested so often that he cannot tell how often.’” It appears that when appellant was on the stand he was cross-examined by counsel for the government, as follows: “Q. How many times have you been arrested? A. I don't remember. Q. How many times have you been arrested in Paul’s Valley? A. Once or twice. Q. Not more than twice? A. I don't know. Q. What were you arrested for? A. For disturbing the peace. Q. Fighting? A. Yes, sir. Mr. Furman, I move your honor to exclude that, because the one purpose on earth of allowing a witness to be questioned about his arrest is as to those offenses which might affect his credibility as a witness. That is the sole basis. If 1 know the law, — I will submit I don’t know much, but some things I do know about it, — and I submit that the only question that can be asked is something which would affect his reputation for truthfulness. The Court: The same rigid requirements with reference to an examination do not apply with reference to a cross-examination. One of the rules is that you may follow a witness through his whole life, his environment, his course of conduct; the whole may be sounded with reference to enabling the jury to determine the character of the defendant. Things, however, which occurred before the alleged offense— These matters which you are inquiring about occurred previous to this criipe? Mr. Humphrey: Some of them before and some of them after. The particular' points since. The Court: That is not competent. Mr. Furman: Your honor excludes that from the jury? The Court: Yes, sir. Mr. Humphrey: Q. Were you ever arrested before this? A. Yes, sir. Q. For what? A. Gambling. Q. Ever arrested for assault to kill? A. No, sir. Q. Ever arrested for fighting? A. Yes, sir. Q. Where? A. Texas. Q. Ever arrested for anything else? A. Gambling. Q. Ever arrested for anything else? A. Yes, sir, I believe I have been arrested. I was charged once with taking a horse that didn’t belong to me. I won this horse off a fellow, mind you, and he didn’t want to give it up. Q. Were you ever arrested for anything else besides the horse? A. Not that I remember of. Q. Ever arrested for any other fighting before this occurred out here at Foster? A. Yes, sir; I said I had. Q. How many times were you arrested for fighting before you came to Foster? A. I don.t know. Q. About how many times? A. I don’t know. Q. Approximate it. Mr. Fúrman: I desire to be understood as interposing an objection to any arrest for fighting. Your honor overrules it, and we take an exception. The Court: It goes for what it is worth. Mr. Furman: I wish to save the exception. Mr. Humphrey: Q. How many times were you arrested for fighting before you went to Foster? A. I couldn’t tell you. Q. Twenty-five times? A. No, sir. Q. Fifty times? A. No, sir. Q. Ten times? A. I don’t know. Q. Was it as many as ten? A. I suppose so.” It is certainly evident from this examination that counsel did not go out of the record in the comment excepted to, and that such cross-examination was entirely proper, not to' put in issue the “character of the appellant for peace and. good order,” -but for the purpose of affecting his credibility as a witness; and the comment of the counsel as quoted could have no other effect than to call the attention of the jury to the evidence 'of the appellant. The comment in the case of Bradburn vs U. S. was outside of the record,'and it is not applicable to the facts in this case. j

It is our judgment that the charge excepted to and the ruling of the court below excepted to was correct, and the judgment of the court below is therefore affirmed.