Rowe v. United States

This is an indictment for murder, alleged to have been committed by the plaintiff in error, in the Cherokee Nation, Ind. T., on the 30th day of March, 1895; the person killed, Frank Bozeman, being a white man, and not an Indian. The verdict was guilty of manslaughter, and, a motion for new trial having been overruled, the accused was sentenced to imprisonment in the penitentiary at Columbus, Ohio, for the term of five years, and to pay to the United States a fine of $500.

We extract from the record the following agreed statement as to the evidence:

'The testimony on the part of the government tended to show: That on the evening of the 30th of March, 1895, the defendant, David Cul Rowe, who is a Cherokee Indian, and the deceased, Frank Bozeman, a white man, a citizen of the United States, and not an Indian, met at an hotel at Pryor's Creek, Ind. T., at the supper table. That the defendant appeared to be drinking, but was not much intoxicated. That defendant said that he had his gun, and that he had a right to carry it, as he was a 'traveler.' That he had made a gun play in that town on one occasion, and he would make another one. That he said to deceased, 'What do you think of that?' The deceased did not reply, and defendant said to him, 'God damn you, I'll make you hide out, or I'll make you talk to me.' That in a short time deceased got through his supper, and walked out into the office of the hotel, and presently defendant came out of the dining room. That defendant said something to deceased, which was not understood by the witnesses, but the deceased did not answer. That defendant turned to some other parties present, and said, 'He [meaning deceased] will not talk to me.' That one of the parties addressed said to defendant. 'Talk Cherokee to him.' That the deceased then said, 'He has got too damn much nigger blood in him to talk anything with any sense.' That defendant then kicked at deceased, hitting him lightly on the lower part of the leg. That immediately deceased sprang at defendant, striking him with a knife, and cutting him in two places on the face. That, after deceased began cutting defendant, the latter drew his pistol, and fired, shooting deceased through the body. That, at the time the defendant fired, the two men were in striking distance of one another. The shot struck deceased in the right arm, near the elbow, and ranged through the body from right to left side. That, when shot was fired, deceased ran, and, when defendant turned round, the blood was streaming from his face, where he had been cut by deceased, and he said to the bystanders to go for a doctor, that he was killed. That, a short time after the difficulty, the knife used by deceased on defendant was found near the place where the the trouble occurred. That a knife was also found on the person of deceased after his death.

'The testimony on the part of the defense tended to show that, on the day of the difficulty, defendant came into town from his home. about 20 miles distant, with his wife, to do some shopping; that he brought his pistol with him, and left it at the livery stable, where he put up his team, and at supper time went by the stable and got his pistol, fearing that it might be stolen; that defendant did not have anything to say to deceased in the dining-room, but was talking with the father of the deceased, and that defendant was not intoxicated; that, when defendant came out in the office, deceased used the language indicated in the statement for the government, or words to that effect, and defendant kicked at him, and probably struck him lightly; that, when defendant kicked, he stepped back, and leaned up against the counter, and deceased sprang at him, and began cutting him with a knife; that deceased cut him in the face, and kept on striking at him with the knife, and, after he was cut in the face, defendant drew his pistol, and fired at deceased, who was in the act of striking him again with the knife. The foregoing is, in substance, the statement of the defendant, who testified in his own behalf.

'Proof was also offered tending to show that the reputation of the deceased as a dangerous and lawless man was bad, that the reputation of the defendant as a peaceable and law-abiding man was good, and that the reputation of prosecuting witness Thomas Boseman was bad for truth in the communities where he had resided.' The court delivered an oral charge, occupying 27 pages of the printed record, and embracing a discussion of most of the leading principles in criminal law, as well as many extracts from adjudged cases and elementary treatises.

Referring to the law of self-defense, the court said to the jury:

'A man might be to some extent in the wrong, and yet he might avail himself of the law of self-defense; but what is meant by his being in the lawful pursuit of his business means that he is not himself attempting to kill, or that he is not doing an act which may directly and immediately produce a deadly affray between himself and his adversary. He is not allowed to do either. The only time when he can do an act of that kind is when the condition exists which gives him the right to invoke this law. I say, if he is attempting directly to kill, he is not in the lawful pursuit of his business unless it is in his own defense under this law; and, when he is doing a wrongful act which immediately contributes to the result,-brings into existence an affray in which violence may be used by the adversary and he may kill because of that violence, when that is the case, the law says he is so far the author of that violent condition as that he cannot invoke this law of self-defense; and it depends upon the circumstances and conditions of the case whether or not he can invoke the law so far as to have his crime mitigated from murder to manslaughter. Then, when he is in the lawful pursuit of his business,-that is, when he is occupying the relation to the state of case where the killing occurred which I have named,-and then is attacked by another, under circumstances which denote an intention to take away his life, or to do him some enormous bodily harm, he may lawfully kill the assailant, provided he use all the means in his power otherwise to save his own life, or prevent the intended harm, such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power. Now, let us go over that again, and see what these propositions are. He must be measurably in the right,-and I have defined to you what that means,-and, when he is so situated, he is attacked, in this case, by Frank Bozeman, the man who was killed, and attacked under circumstances which denoted an intention to take away his life or to do him some enormous bodily harm, he may lawfully kill the assailant, provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power. This proposition implies that he is measurably in the right. If he is doing any of these things, which I will give you after awhile, which deprive him of the law of self-defense because of his own conduct in precipitating a conflict in which he kills, then he is not in the right. He is not doing what he had a right to do, and this proposition of the law of self-defense would not avail him. He could not resort to it, because his own conduct puts him in an attitude where, in the eye of the law, he is by his own wrong the creator of the necessity under which he acts, and he cannot invoke that necessity. The necessity must be one created by the man slain, and which was not brought into existence by the direct act of the defendant contributing to that necessity.'

After saying that both the accused and the deceased were upon the same plane in respect of the place or house in which they were at the time, each having the right to be there, the court proceeded: 'Neither one of them was required to retreat under such circumstances, because the hotel or temporary stopping place of a man may be regarded as his dwelling place, and the law of retreat in a case like that is different from what it would be on the outside. Still, situated as was the defendant, and as was the deceased, there was a rule incumbent upon both of them which required that they should use all reasonable means to avoid the condition which led to a deadly conflict, whether that means could have been avoided by keeping out of the affray, or by not going into it, or by stepping to one side; and this law says, again, that if a man is in the right, if he stands without being the creator of that condition, and that condition is created by the man whom he kills, and the man is doing that, in the shape of exercising an act of violence, which may destroy his life, or inflict great injury upon his person, yet if he could have paralyzed that arm, if he could have turned aside that danger by an act of less deadly character than the one he did exercise, the law says he must do that. If he could have inflicted a less dangerous wound upon the man, under the circumstances, the law commands him to do that, because, when he is doing that, he is accomplishing the only purpose the law of self-defense contemplates he has a right to accomplish; that is, to protect himself, and not to execute vengeance, not to recklessly, wantonly, and wickedly destroy human life, but to protect his own life, when he is in the right, and the other party is in the wrong.'

Ben T. Duval and William M. Cravens, for plaintiff in error.

Asst. Atty. Gen. Dickinson, for the United States.

[Argument of Counsel from pages 551-554 intentionally omitted]

Mr. Justice HARLAN delivered the opinion of the court.