# Hicks v. United States

Supreme Court of the United States
150 U.S. 442
HICKS v. UNITED STATES
Error to the Circuit Court of the United States for the Western District of Arkansas
No. 971. Argued: Nov. 16, 1893 --- Decided: Nov. 27, 1893

## Dissenting Opinion

    Brewer
H. was indicted jointly with R. for the murder of C. Before the day of trial R. was killed, whereupon H. was tried separately. It was clearly proved at the trial that H. did not kill C.nor take any part in the physical struggle which resulted in his death at the hands of R. There was evidence tending to show that by his language and gestures H. abetted R., but this evidence was given by persons who stood at some distance from the scene of the crime. H. denied having used such language, or any language with an intent to participate in the murder, and insisted that what he had said had been said under the apprehension that R., who [p443] was in a dangerous mood, was about to shoot him (H.). The court instructed the jury that it was proved beyond controversy that R. fired the gun, and continued: "If the defendant was actually or constructively present at that time, and in any way aided or abetted by word or by advising or encouraging the shooting of C. by R., we have a condition which under the law puts him present at,the place of the crime; and if the facts show that he either aided or abetted or advised or encouraged R., he is made a participant in the crime as thoroughly and completely as though he had with his own hand fired the shot which took the life of the man killed The law further says that if he was actually present at that place at the time of the firing by R. and he was there for the purpose of either aiding, abetting, advising, or encouraging the shooting of C. by R., and that as a matter of fact he did not do it, but was present at the place for the purpose of aiding or abetting or advising or encouraging his shooting, but he did not do it because it was not necessary, it was done without his assistance, the law says there is a third condition where guilt is fastened to his act in that regard." Held, that this instruction was erroneous in two particulars:
(1) It omitted to instruct the jury that the acts or words of encouragement and abetting must have been used by the accused with the intention of encouraging and abetting R.;
(2) Because the evidence, so far as the court is permitted to notice it, as contained in the bills of exception, and set forth in the charge, shows no facts from which the jury could have properly found that the rencounter was the result of any previous conspiracy or arrangement.
Under the provisions in the act of March 16, 1878, 20 Stat. 30, c. 37, H. at the trial offered himself as a witness in his own behalf. In charging the jury the court said: "The defendant has gone upon the stand in this case and made his statement. You are to weigh its reasonableness, its probability, its consistency, and: above all you consider it in the light of the other evidence, in the sight of the other facts. If he is contradicted by other reliable facts, that goes against him, goes against his evidence. You may explain it perhaps on the theory of an honest mistake or a case of forgetfulness, but if there is a conflict as to material facts between his statements and the statements of the other witnesses who are telling the truth, then you would have a contradiction that would weigh against the statements of the defendant as coming from such witnesses." Held, that this was error, as it tended to defeat the wise and humane provision of the law that "the person charged shall, at his own request, but not otherwise, be a competent witness."
The exception to the judge's charge does not embrace too large a portion of it, and is not subject to the often sustained objection, of not being sufficiently precise and pointed to call the attention of the judge to the particular error complained of.
THE case is stated in the opinion.
[p444] Mr. A. H. Garland for plaintiff in error.
Mr. Assistant Attorney General Conrad 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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