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

Supreme Court of the United States
151 U.S. 303
HICKORY v. UNITED STATES
Error to the Circuit Court of the United States for the Western District of Arkansas
No. 841. Submitted: Oct. 19, 1893 --- Decided: Jan. 15, 1894

## Linked case(s)

160 U.S. 408
The genuineness of disputed handwriting cannot, as a general rule, be determined by comparing it with other handwriting of te party.
A writing specially prepared for purpose of comparison is not admissible.
If a paper, admitted to be in the handwriting of the party or to have been subscribed by him, is in evidence for some other purpose in the cause, the paper in question may be compared with it by the jury; but if offered for the sole purpose of comparison, it is not admissible.
The right of a person indicted for a capital offence to have delivered to him, under Rev. Stat. § 1033, at least two days before the trial, a list of the witnesses to be produced, may be waived by sitting by and listening to the testimony in chief of a witness not on such list, before inquiring whether his name had been furnished to defendant.
Proof of contradictory statements by one's own witness, voluntarily called and not a party, is in general not admissible, although the party calling him may have been surprised by them; but he may show that the facts were not as stated, although this may tend incidentally to discredit the witness.
Whether or not a particular homicide is committed in repulsion of an attack, and, if so, justifiably, are questions of fact, not necessarily dependent upon the duration or quality of the reflection by which the act may have been preceded.
Allen v. United States, 150 U.S. 551, followed in condemning the doctrine as impracticable, which tests the question whether a person on trial for murder is entitled to excuse on the ground of self-defence, or exceeded the limits of the exercise of that right, or acted upon unreasonable grounds, or in the heat of passion, by the deliberation with which a judge expounds the law to a jury, or the jury determines the facts, or with which judgment is entered and carried into execution.
Matter excepted to should be brought to the attention of the court before the retirement of the jury.
When several distinct propositions are given, and the exception covers all of them, it cannot be sustained if any one of them is correct.
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 [p304] 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 Hick- [p305] ory'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. A. H. Garland for plaintiff in error.
Mr. Assistant Attorney General Whitney for defendants in error.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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