Hickory v. United States (151 U.S. 303)

Statement by Mr. Chief Justice FULLER:

Sam Downing, alias Sam Hickory, and Tom Shade, two Cherokees, were indicted and tried for the murder of Joseph Wilson, a United States deputy marshal, the trial resulting in the acquittal of Shade and the conviction of Hickory, who, being sentenced to death, prosecuted this writ of error. As stated in the brief for the government, Hickory admitted that he killed Wilson, but claimed that he was the attacking party; that the marshal came to arrest him for a violation of the liquor laws, and after the arrest, and while he was proceeding towards his house to get a saddle, the marshal began firing at him; that he ran into the house, and an affray occurred there, in which there was shooting by both, until the marshal was killed; that he concealed the body in a ravine, where it was found two or three days later; then hid in the neighborhood for awhile, and wandered about until he was arrested among the Osage Indians. One Carey testified that he went with the marshal to show him where Hickory lived, and that it was arranged that he should remain in the woods while Wilson went to the house and made the arrest; that, after he had arrested Hickory, he would fire his pistol to notify Carey that he had done so, so that Carey could meet him at a designated point; that in about half an hour Carey heard a shot, followed by several others.

There was some evidence that Wilson's skull had been fractured; also that Wilson's horse was found dead, with his throat cut, lying in an opposite direction from the body; and an attempt to show that Wilson, after being wounded by Hickory, was finally killed with an axe by Shade.

A letter written in the Cherokee alphabet, and claimed to be in Hickory's handwriting, to Ollie Hickory, alia Williams, was put in evidence, and marked 'A,' and was interpreted as follows: 'October 15th, 1891. Ollie: I write you a few lines. You must never disclose how this is about Tom Shade. Just say that I was the only one that did it. You must never tell anybody that he killed the horse, and all that he done. I tell you you must not. That is all now. I write in haste. Sam.'

The letter was identified as in Hickory's handwriting, although he denied it, and was admitted under exception on the part of the defendants. Joseph Shade, a witness for the defense, produced a paper on cross-examination, not relevant in itself, which was marked 'X,' which he testified was in Hickory's handwriting, and which seems to have been put in evidence without objection.

An expert in Cherokee handwriting testified on behalf of the defendants, on comparison of Exhibits A and X, that they were written by different persons, and that the only resemblance was in the signatures. Another witness testified that A was not in Hickory's handwriting, but that X was.

Mr. Justice Brewer dissenting.

A. H. Garland, for plaintiff in error.

Asst. Atty. Gen. Whitney, for United States.

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