Starr v. United States (153 U.S. 614)

A warrant issued by a commissioner of a court of the United States is not void for the want of a seal, the commissioner having no seal, and not being required by statute to affix one to warrants issued by him.

The same result is reached under the laws of Arkansas, which prescribed the form of warrant as attested under hand, but not under seal.

The settled rule that where a person having authority to arrest, and using the proper means for that purpose is resisted, he can repel force with force, and, if the party making the resistance is unavoidably killed, the homicide is justifiable, may be invoked by a person who resists and kills the officer if he was ignorant of the fact that he was an officer; and, when such a defence is set up to an indictment for murder, it is error to charge the jury that, if the threatening or violent conduct of the prisoner prevented the officer from giving notice of his official character, he would not be required to give notice.

The possession of a conscience void of offence towards God and man is not an indispensable prerequisite to justification of action in the face of imminent and deadly peril, nor does the intrinsic rightfulness of the occupation or situation of a party, having in itself no bearing upon or connection with an assault, impose a limitation upon the right to repel it.

The motive of a person, accused of murdering an officer trying to arrest him, in being where he was at the time of the killing, has nothing to do with the question of his right of self-defence in itself, and his previous [p615] unlawful conduct should form no element in the solution of that question, except as it throws light on his belief that his arrest was sought by the officer.

While it is well settled in Federal courts that the presiding Judge may sum up the facts to the jury, and express an opinion upon them, he should take care to separate the law from the facts, and leave the latter in unequivocal terms to the judgment of the jury.

The circumstances of this case apparently aroused the indignation of the Judge who presided at the trial of it in an uncommon degree, and that indignation was expressed in terms which were not consistent with due regard to the right and duty of the jury to exercise an independent judgment in the premises, or with the circumspection and caution which should characterize judicial utterances; and this court is constrained to express its disapprobation of this mode of instructing and advising a jury.

HENRY STARR was convicted of the murder of Floyd Wilson, a white man and not an Indian, on December 13, 1892, at the Cherokee Nation in the Indian Territory, and, November 4, 1893, sentenced to be hanged on February 20, 1894, and thereupon sued out this writ of error.

It appeared on the trial that on November 18, 1892, a varrant was issued by a United States commissioner for the Western District of Arkansas for the arrest of Starr and others on a charge of larceny, which was delivered for execution to Henry E. Dickey, a deputy United States marshal; and that the marshal summoned Floyd Wilson, the deceased, as his posse to aid in the execution of the warrant. The evidence tended to show that they proceeded on horseback to the neighborhood of the place where Starr was to be found, and, after visiting several points, came to the house of one Dodge, where they concealed themselves to await his coming; that Starr passed Dodge's house on horseback, whereupon Wilson mounted his horse and pursued him; that the two jumped from their horses and stood facing each other a short time, apparently talking; that it looked as if Starr "was trying to work off away from Wilson," when Wilson mounted his horse again and rode up to within twenty-five or thirty feet of Starr, who made no effort to flee; that Wilson then sprang from his horse, threw his gun to his shoulder and fired at Starr, who was then standing with his gun in both hands holding it down, but, upon Wilson's shooting, returned the [p616] fire and continued to fire rapidly; that Wilson fell, raised himself in a sitting position, jerked his six shooter out and fired four times, when Starr ran up to him and fired point blank into him; Wilson died immediately afterwards. The evidence further tended to show that during the affray Starr fired one shot at the marshal; that he picked up Wilson's gun, found the lever out of order, could not fire it, and turned to go away, and, as he turned, the marshal fired at him; that the marshal's and Starr's horses ran away, but Starr caught Wilson's horse, and, mounting it, rode off. The marshal testified that at the time of this occurrence he had the writ in his possession, and had instructed Wilson as to his duties, and told him, "Now, don't kill this boy if possible to get along without it. We will call on him to surrender."

One Mrs. Padget testified that she saw the transaction from a distance, called a quarter of a mile, and understood Wilson to say: "Hold up; I have a warrant for you;" and that Starr said: "You hold up." She also, in answer to a question put by the district attorney, stated that three or four weeks before the shooting Starr told her that he guessed a marshal named Cowden was hunting for him, "for jumping his bond." And Dickey said in the course of his testimony that he went up in Starr's neighborhood to see a person "shortly after Henry started, got out and jumped his bond."

The witnesses agreed that Wilson fired the first shot, and also that during the time he was riding up to Starr, Starr did not raise his gun or make any effort to stop Wilson. Starr was a Cherokee Indian, and at that time between eighteen and nineteen years of age.

The warrant was signed by Stephen Wheeler, "Commissioner U. S: Court, Western District of Arkansas," and tested as under seal, but no seal was affixed, and counsel for defendant objected to the warrant for the want of a seal, and took exception to its admission on that ground, though in answer to questions by the court they admitted that Wheeler was a United States commissioner for the Western District of Arkansas at the time the writ issued, and that the signature thereto was genuine.

[p617] Mr. A. H. Garland for plaintiff in error.

Mr. Assistant Attorney General Conrad for defendants in error.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.