Allen v. United States (157 U.S. 675)

In the circuit court of the United States for the Western district of Arkansas, at the May term, 1894, Alexander Allen was tried and found guilty of the murder of one Philip Henson.

The evidence certified to us by the bill of exceptions shows that Philip Henson, a white boy, about 17 years old, was shot and killed by the defendant, a colored boy, about 15 years old, on May 15, 1892. It appears that two or three days before these boys, with several companions, had met and had a difficulty. James Marks testified that, on that occasion, Henson and his party followed them, and threw sticks at them, and said 'We will be over Saturday to settle with you.' Allen, testifying in his own behalf, said that the first time he ever saw deceased, Philip Henson, was two days before the killing; that James Marks (on whose farm defendant was working) and defendant were out hunting horses, when he saw Henson and other boys; that he made inquiry of them about the horses; and that he and Jim Marks started to go across a creek, and Henson and his companions followed them, and threw sticks at them, and said they would kill 'that nigger' the first chance they got, and said they would settle it on Saturday.

The scene of the shooting was at or near a hog pen on Marks' farm. There was a wire fence separating the Marks place from an adjacent field. The testimony is contradictory as to whether Henson and his companions crossed the fence into the Marks farm. The Henson party had freshly-cut sticks in their hands. An altercation took place. Young Marks testified that Henson said, when the defendant asked them what they came after, they came to kill a nigger. The story told by Willie Erne, one of the Henson party,-a boy of 13 years of age,-was the clearest statement, on behalf of the prosecution, of what took place. It was as follows:

'On Saturday, Philip, George, and I started to go fishing. We had some willow sticks to kill frogs with, for bait. We went a little over halfway, and saw some one behind Marks' hogpen, and when we got up about the length of the court room [about seventy feet] from the fence, and defendant got up and walked along the fence, and we kept walking the same way we had been walking,-that is, we were walking, not towards the Marks house, but northeast the yard fence, behind which was the defendant,-walked north. We were not intending to go into the yard. We intended to cross north of the yard, because that was nearest to the lake; and defendant said, 'Hello, George! where are you going?' and George said, 'Going fishing,' and defendant said: 'Well, hold on. I heard you said I told a lie on you.' Defendant pulled his pistol out at that time, and George said, 'May be I did.' Defendant pulled scabbard off pistol, and handed it to the Marks boy, and got through the fence, and walked up to Philip Henson, and hit him in the mouth with his left hand, and pulled down the pistol with his right hand, and Philip grabbed it, and it shot into the ground. Then Philip dropped the pistol, and he shot Philip under the arm, and when he turned around he shot him in the back, and then he shot at George twice, and hit George in the back. He then snapped the pistol at me. I was running when he snapped at me. * * * When defendant shot Philip once, Philip raised his stick, and I think he hit defendant with it. Defendant put the pistol on top wire of the fence, and pointed it at us, while we were about thiry yards away. He told us to stop, and we stood there till he got through the fence, and he then pulled pistol out of the scabbard, and gave it to the Marks boy, and came on up to us. We did not move. None of us said a word to him. The Marks boy was standing at the fence, looking through the wire, during the shooting. We did not go over on the side next to Marks,-none of us. At the time defendant came out towards us Philip Henson was nearer to defendant than George and I, and he bet Philip was larger than George.'

The testimony of yound Marks and of the defendant was to the effect that the Erne boy and Philip Henson crossed over the fence into the Marks yard, and made the first assault, and that defendant did not draw his pistol or shoot until he had been knocked down, and when three of the assailants were on him.

Mr. Justice Brewer dissenting.

Solicitor General Conrad, for the United States.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.