# Smith v. United States (161 U.S. 85)

Supreme Court of the United States
161 U.S. 85
SMITH v. UNITED STATES
Error to the Circuit Court of the United States for the Western District of Arkansas
No. 608. Argued: Nov. 19, 1895 --- Decided: Mar. 2, 1896
Upon a trial for murder, where the question is whether the killing was in self-defence, evidence that the deceased was a larger and more powerful man than the defendant, as well as evidence that the deceased had the general reputation of being a quarrelsome and dangerous man, is competent evidence for the defendant.
Upon the question whether a homicide was committed in self-defence, witnesses called by the defendant testified that the deceased had the general reputation of being a man of a quarrelsome and dangerous character; and being asked on cross-examination whether they had ever been arrested for anything, it appeared that one of them had been arrested, convicted and imprisoned for selling whiskey, and others had been arrested, but not convicted, for various offences. The judge instructed the jury that reputation was the reflection of character, and, in order to be entitled to consideration, must come from a pure source, and be the reflection of honest and conscientious men, who have character themselves; that, if a man is without character himself, his action characterized by crime, his conscience seared by criminal conduct, he is incompetent to know what character is; and that if it was the reflection of keepers of gambling hells, and violators of law, and prison convicts, the jury should cast it aside as so much worthless matter. Held, that the defendant, having excepted to this instruction, and been convicted of murder, was entitled to a new trial.
THIS was an indictment in the Circuit Court of the United States for the Western District of Arkansas for the murder, at the Cherokee Nation, in the Indian country, on September 27, 1894, of John Welch, a negro and not an Indian, by shooting him with a pistol.
[p86] At the trial, the government introduced evidence tending to show that Welch and the defendant, about noon, at a fair ground in Muscogee, at a spot close by their respective tents, and near a merry-go-round, a dance hall, gambling places, refreshment booths, and other tents and buildings, and in the presence of a crowd of people, fell into dispute; that the defendant ran into his tent, and, finding one Scott Gentry inside, snatched Gentry's pistol from his belt, came out, and shot and killed Welch; and that Welch was unarmed at the time.
The defendant admitted the killing, and contended that he did it in self-defense; and, being called as a witness in his own behalf, testified that he knew Welch, "was very nearly raised up with him," and they had "tussled together all the way up from boys;" that Welch was a bigger and much stronger man than himself; that he knew that Welch had a pistol the night before; and that when he shot Welch, Welch was advancing, with his right hand at his hip pocket, towards the defendant, and threatening to kill him.
The defendant also called witnesses, who testified that the deceased had previously made threats against the defendant's life; and five other witnesses, living at Muscogee, who testified that they had known Welch for years, and that he had the general reputation of being a man of quarrelsome and dangerous character.
Each of these five witnesses was asked by the district attorney, on cross-examination, whether he had ever been arrested for anything. In answer to this question one of them testified that he had been arrested, tried, and acquitted for murder; and had been arrested for gambling, and discharged. A second witness testified that he had been arrested for "fighting and gambling" only. A third witness testified that he had once been arrested, three or four years before, and brought to Fort Smith, for selling whisky; and, on reëxamination, that the grand jury ignored the charge, and that he had never been convicted of anything. A fourth witness testified that he had been arrested for "fighting and whisky," but for nothing else, and had twice "served a jail [p87] sentence for whisky." The fifth witness testified that he had never been arrested for anything; and there was no other evidence of the arrest or conviction of any of these witnesses, or that any of them had anything to do with keeping a gambling place.
The court, in the charge to the jury, instructed them as to the evidence of the character of the deceased as follows: "Now, what is reputation? It is the reflection of character. Character is the thing itself. It is that which a man makes day after day, and hour after hour, and year after year, by his bearing and conduct in the community where he lives. If that thing is reflected by the words spoken by men of credit, by men of standing, by men of pure character standing before you, that such reputation is so reflected as that you can believe it, of course it is entitled to consideration, and to be taken in the case if it is applicable. But it is to come from men who are morally and mentally competent to know what it means. If a man is without character himself, if his action has been characterized by crime, if his conscience has been seared by criminal conduct, he is thus rendered incompetent to know what character is. He has none himself, and he is incompetent to determine when other men have one. And above all is it necessary, important, and essential to the interests of public justice that justice should not be defeated by men of that character, scraped from the four corners of the earth. You are to see to it that it comes from a pure source; and then, again, you are to see to it that it is the reflection, not by keepers of dives and gambling hells, and violators of law, and prison convicts, but it is the reflection of honest and conscientious men, of men who possess character themselves; men of integrity; men whose judgments make up in your community your character that you prize so highly, because it is the opinion of honest, intelligent, judicious, and just men and women in your community. That is the source that character is to come from, and the only source from which you can derive it in a reliable way. If it does not come from that source, but comes from the source I have designated, cast it aside as so much worthless [p88] matter invoked wrongfully in cases of this character." To this instruction the defendant at the time excepted, and, after being convicted and sentenced for murder, sued out this writ of error.
Mr. William M. Cravens for plaintiff in error. Mr. C. J. Frederick was on his brief.
Mr. Assistant Attorney General Whitney for the defendant 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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