Allen v. United States

Allen v. United States

Opinion

 [*493]   [**154]   [***528]  MR. JUSTICE BROWN delivered the opinion of the court.

This was a writ of error to a judgment of [****4]  the Circuit Court of the United States for the Western District of Arkansas sentencing the plaintiff in error to death for the murder of Philip  [*494]  Henson, a white man, in the Cherokee Nation of the Indian Territory. The defendant was tried and convicted in 1893, and upon such conviction being set aside by this court, 150 U.S. 551, was again tried and convicted in 1894. The case was again reversed, 157 U.S. 675, when Allen was tried for the third time and convicted, and this writ of error was sued out.

The facts are so fully set forth in the previous reports of the case that it is unnecessary to repeat them here.

We are somewhat embarrassed in the consideration of this case by the voluminousness of the charge, and of the exceptions taken thereto, as well as by the absence of a brief on the part of the plaintiff in error; but the principal assignments of error, set forth in the record, will be noticed in this opinion.

1. The third assignment of error is taken to  [**155]  certain language in the charge, the material portion of which is as follows:

"If you believe the story as narrated by the two Erne boys, who testified as witnesses, is true -- that is, that the [****5]  defendant went up to the fence with his pistol; that he went through the wire fence, and went out in the wheat field where Philip Henson was, and met him, first hollered at him, placed his pistol upon the fence and stopped the boys, and then went through the wire fence and went out to where he was, and struck him first in the mouth with his left fist, and at the same time undertook to fire upon him, and that that firing was prevented by the action of Henson in taking hold of the pistol, and it went off into the ground, and then he fired at him and struck him in the side, and then he fired at him and struck him in the back, you have a state of facts which would authorize you to say that the killing was done wilfully; and, not only that, but to say that it was done with malice aforethought, because that state of case, if that be true, would show the doing of a wrongful act, an illegal act, without just cause or excuse, and in the absence of mitigating facts to reduce the grade of the crime."

The learned judge was stating in this connection the theory of the prosecution, and if the facts were as stated by the  [*495]  Ernes, there was no error in saying to the jury, not that they [****6]  were bound to, but that they were at liberty to, infer not only wilfulness but malice aforethought.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.