Wallace v. United States (162 U.S. 466)

Jerry Wallace was convicted at the May term, 1895, of the district court of the United States for the district of Kansas, of the murder of Alexander Zane on March 7, 1895, at the Wyandotte Indian reservation, and sentenced to be hanged.

The evidence tended to show that Wallace had lived on that reservation for four years, on a piece of land owned by his wife, Jane, a daughter of Alexander Zane, to whom he was married in 1891. Ill feeling had for a long time existed between Zane and Wallace, growing out of a dispute between them as to the true boundary line of the land owned or claimed by June Wallace, and on which she resided, and the land of Julia, a minor daughter of Alexander Zane. Surveys had been made, and patents had issued, but the true boundary line, if established by the surveys, had not been accepted by the parties. March 7, 1895, about 7 o'clock in the morning, Alexander Zane, accompanied by his son Noah, who was about 15 years of age, and three other parties, proceeded, with two wagons loaded with posts, from his farm to the land on which Wallace resided, and entered the land on which Wallace resided, and entered was at that moment engaged in plowing, through a gap in the fence made by Alexander Zane, and went across it to the fence on the eastern side, and there began to unload the posts, and to plant or drive them into the ground along the fence line which they proposed to establish. Wallace and one Denmark were engaged in plowing the field, being in different parts, and moving in opposite directions. As Zane and his party entered the field, and were crossing it, Wallace was plowing towards its eastern side, which he had reached, and was returning when Zane and his party passed about 50 or 60 yards from him, moving in a southeasterly course. Wallace had impaired eyesight, and did not see Zane until just before he passed, and then called to him, saying, 'Alexander Zane, if that is you, take your force and get out of this field,' or, as it was put by one or more of the witnesses, 'Alexander Zane, I want you to take your mob and get off these premises.' There was evidence tending to show that Zane and those who were with him had been drinking, and that they were boisterous, singing and hallooing. Defendant testified: 'They were noisy, hollering and singing, and acting as if they were drunk, to me; and I guess, no doubt, was.' Zane appears to have made no reply to Wallace, but went on his way. Wallace continued on with his plow until he had reached a ravine that ran north and south through the field, where he halted, unhitched his horses from the plow, and took them up to the barn. In about half an hour he returned with a double-barreled shotgun in his hands, passed within a few feet of a group of persons consisting of Denmark, his daughter, one Lewis, and Wallace's wife, and, in passing, said to his wife, 'Now, Janie, I want you to order these gentlemen out of here.' Mrs. Wallace then ordered Alexander Zane and those who were with him to leave, but they paid no attention to her. Thereupon Wallace ordered Zane to leave, and said to him, 'Are you going?' Zane was standing with his right hand on a post he had driven in the ground, and his left arm hanging by his side.

Wallace testified: 'I asked of him whether he was going or not, and about this time I was struck in the back, and Mr. Zane made a grab like this (indicating), and he was standing with his right hand on a post. About the time I was struck in the back he made this motion (indicating), and says, 'Damn you! I will kill you!' and then my wife hollers, or least she says, 'Look out, Jerry!' and I fired this gun.'

Lafayette Lewis, another witness, testified: 'His wife ordered them out, and Jerry, also, and he asked Zane if he was going to go, but I never heard Zane say a word; and then he told him the second time, and he looked up towards him, with his left hand on the post, and threw his hand up this way (indicating), and said, 'Damn you! I am going to kill you!' * * * When Jerry ordered him the second time, he turned, and kind of looked at him, and threw his hand up this way, to his bosom, and said, 'Damn you! I will kill you!' and at that moment the boy struck Jerry with the knife, and Jerry shot him.'

Several other witnesses did not see or hear any word or gesture proceed from Zane, but testified that when Wallace said to Zane, 'Are you going?' he immediately raised his gun, aimed it at Zane, and fired, shooting Zane in the left breast; that Zane walked off about 30 feet and fell, and, when those nearest him reached him, he was dead; that, when Wallace fired his gun at Zane, Noah Zane ran up and stabbed him in the shoulder with a pocketknife, whereupon Wallace turned and pointed his gun at Noah, and the gun snapped. When Zane fell, Noah went to him and took from his person a tomahawk or small hatchet, which was the only thing in the way of a weapon found on him.

There was evidence o the effect that the wound thus inflicted on Wallace penetrated about half an inch, bled considerably, was much swollen, and that his stomach was black and blue, as though he had been hit with something, as he testified that he was.

Evidence was also adduced that Zane was in the habit of carrying a butcher knife with him, in his belt; that he was quarrelsome; and that Wallace had the reputation of being a peaceable and quiet man. In reference to the survey under which Zane claimed, testimony was given tending to show, as was contended, that Zane caused the disputed line to be so run by the chainmen as to gain four feet, and that Zane said 'when he got through with the land he wouldn't leave Jerry Wallace a garden spot; that he could haul it away in a wagon box.'

Defendant offered to prove by R. C. Patterson that the day before the shooting occurred he had a conversation with Zane, 'in which Zane said to him that he was going down there to build a fence across this property of Wallace's the next day, and, if Jerry Wallace fooled with him, he would kill the blind son of a bitch.' This was objected to, the objection sustained, and defendant excepted. Also, that in the same conversation Zane stated that he had got some whisky 'for the purpose of bracing himself up for the purpose of building this fence across the land of this defendant, Jerry Wallace.' Plaintiff objected, the court sustained the objection, and defendant excepted.

Defendant further offered to prove by Charles Luke that he had a conversation with Zane the day before the killing, and 'Alex. Zane said to this witness that he was going down to build a fence across Wallace's land, and that if Jerry Wallace interfered with him, that he would kill him, or shoot the blind son of a bitch,' and that all these threats were communicated to Wallace. plaintiff objected, the objection was sustained, and defendant excepted.

Defendant offered to prove by Mrs. Alice Sargent that somewhere near the middle of February, 1895, she had a conversation with Zane, on which occasion 'Alex. Zane said to this woman, and threatened, that he would kill Jerry Wallace, and that he had a knife that he was carrying at that time for that purpose, and that these threats were communicated to Jerry Wallace by this witness afterwards.' This was objected to, the objection sustained, and defendant excepted. A similar offer of proof by one Taylor was made, and a similar exception taken. Defendant also offered to prove by Samuel Collins 'that at a time shortly before the 7th of March, last, he met Alexander Zane, and had a conversation with Alexander Zane about Jerry Wallace, and that in that conversation he threatened to kill Jerry Wallace, and that he said to this witness that he at one time made him look down the muzzle of a double barreled shotgun, and he wished he had killed him at that time, and that these threats were communicated to the defendant.' An offer to prove similar threats prior to the homicide by Mary Crow was made, excluded, and exception taken.

When the defendant was on the stand, he testified that he took the gun into the field because he was afraid of the party, and especially of Alexander Zane, and did not feel safe without some protection. The following questions were put, and ruling made: 'Q. You may state, mr. Wallace, what Zane did at that time, just before you fired the shot. A. He just took his hand something like this (indicating), saying, 'Damn you, I will kill you.' Q. You may state to the jury, from that demonstration, what you believed Zane was about to do.' To this question plaintiff objected, the objection was sustained, and defendant excepted.

Various errors were assigned in respect of the jurisdiction of the court, the sufficiency of the indictment, the want of due service of the list of jurors, and instructions given and refused.

J. D. Hill and J. H. Pratt, for plaintiff in error.

Sol. Gen. Conrad, for the United States.

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