# Allen v. United States (150 U.S. 551)/Dissent Brewer

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brewer
* Linked case(s):
* 157 U.S. 675 164 U.S. 492
MR. JUSTICE BREWER, with whom concurred MR. JUSTICE BROWN, dissenting.
I am unable to concur in the conclusions of the court in this case, and will state briefly the grounds of my dissent. From the testimony, an outline of which is given in the opinion, it is evident that if the testimony of the two Erne boys as to the circumstances of the homicide is to be believed, the defendant was guilty of a willful and deliberate murder; if that of the defendant and the two Marks boys is the truth, then the homicide was probably only manslaughter. That it was this, at least, is practically conceded. His own counsel say: 'We believe, from a full review of this record, that the defendant should have been found guilty of manslaughter; that is the most of which he is guilty.' That the testimony of the Erne boys was to be believed rather than that of the defendant is made certain by the testimony of the disinterested parties who examined the ground where the homicide took place, and whose testimony as to the condition of the ground where the body of the deceased was found, and the tracks from that place to the fence, renders it morally certain that no such transaction could have taken place as the defendant testified to, and that his testimony and that of the Marks boys was false. Of course, we have not here to pass upon this conflicting testimony. I only notice it that it may be seen that the case did [p563] not turn upon any question of the accountability of the defendant; that, if the testimony of the Erne boys is to be believed, the homicide was willful and deliberate, and in revenge for some opprobrious epithets that had been cast upon him two days theretofore by the deceased. There was nothing in the transaction, whether it took place as testified to by the Erne boys or by the defendant and the Marks boys, to suggest any question of the want of accountability. The conduct of the defendant was like that of any other criminal,-arming himself with a pistol, going to meet a party against whom he has malice, shooting and killing him, and then endeavoring to make his escape. Strike from the case the testimony as to age, and there is nothing in the story of the homicide, whether as told by the witnesses for the prosecution or those of the defendant, which suggests either youth, immaturity, or mental unsoundness. How can it be that there was any prejudicial error in charging the jury that the age at which accountability was presumed commenced at eleven rather than at fourteen? By his own testimony he was past fourteen. He was thus presumably accountable. If the court had made no reference to the matter, confessedly there would have been no error, and a mistake in the date of the time when accountability commences certainly cannot be vital when it is admitted that accountability existed. Suppose, in a case not capital, the court had instructed that the statute of limitations was ten instead of, as is the fact, three years, and the testimony showed beyond any dispute—the defendant himself admitting it—that the transaction had taken place within the prior year, could it be said that there was error working prejudice to the substantial rights of the defendant, and calling for a reversal of the judgment? Yet that is precisely this case. Did this mistake in reference to this irrelevant matter lead the jury to give more credence to the testimony of the Erne boys; to disbelieve the story told by the defendant and his associates? Did it strengthen the testimony of the disinterested parties as to the condition in which they found the place of the homicide and the tracks between that and the fence? Did it in any way change the character of the transaction as presented to [p564] the consideration of the jury? Clearly not, but this court seems to think that the defendant may have looked boyish, and been immature, and that this fact should have been called to the attention of the jury. Yet, if it were true, the jury saw and knew it. So far as the record throws any light upon his appearance, it makes against the idea of boyishness and immaturity. The deceased was a boy eighteen years of age; and his father testifies that the defendant was about his height, and much heavier, although he admits that his own boy was short of statute. When he was arrested by the marshal, the latter accosted him thus: "Here, young man; I want you." Of course, this testimony amounts to but little, but so far as it goes it makes against the idea that one who was in appearance and in fact a mere boy was being tried for crime, whose enormity he did not comprehend, and for which he was not fully accountable. It tends to strengthen that which the testimony of the prosecution, evidently entitled to credence, discloses, to wit, deliberate action by one who knew fully what he was about and who was fully responsible therefor. His counsel asked no instruction in respect to his youth or immaturity, and the general rule is that if a party asks no instructions upon a given matter it cannot be held that the court erred in giving none thereon. It seems to me strange to assume that (while the jury saw the defendant, saw how mature he was, and we only guess at it) he may have been a mere boy in fact and appearance; that the court should have given an instruction in respect thereto, though none was asked; and that, while he admits that he had arrived at an age of accountability, a mistake in the charge of the court as to the time at which accountability commences is sufficient to work a reversal of the judgment.
With reference to the other matter, which, in the judgment of the court, requires a reversal, it is only another and forcible illustration of that disregard of our rules and the general practice of appellate courts in regard to bills of exception which I had occasion to comment upon in the opinion I have just filed in the case of Hicks v. United States, ante, 442, 453. Here is over a page of the court's charge which is challenged [p565] by a general exception without any specification of the matter of law which is objected to. Singularly enough, the matter of law which is the substantial feature of this challenged portion of the charge is not deemed erroneous, is not noticed by this court, but the error which is found is in language of mere illustration in an introductory question. That matter is the law of self-defense, the right to take the life of an assailant to preserve one's own life; and the law stated is that, when there is real danger, the party assailed may take the life of his assailant. No question is made but that this matter of law was stated correctly. It is, however, held that an error was committed in a question which led up to this statement of the rule of law. The court asks, "When can a man slay another? When can he sit as a judge passing upon the law and a jury passing on the facts, and then as a jury applying the law to those facts and finding a verdict, and then acting again as the court and entering up judgment, and then going out as a marshal or sheriff and executing that judgment, all at the same time—determining the law, determining the facts as judge, jury, and executioner, all at the same time?" and because of this question, stated as a preliminary to the laying down of the rule of law, the judgment is set aside. There is in this no charge that there must be a period of long deliberation, such as that which sometimes characterizes proceedings in a court of justice. On the contrary, the plain implication is of speed, for the language is 'determining the law, determining the facts as judge, jury, and executioner, all at the same time,'-an instantaneous act. It is psychologically true that a party in exercising the right of selfdefense determines what the law is which gives him a right to act, and whether the case before him is within that law, and thus is judge and jury, and then, as marshal or sheriff, carries that determination into immediate execution. It may be conceded that the mental action may be rapid,-instantaneous, as it were; that there may be no distinct separation in the thought of the party as to the respective functions of judge and jury, no formal presentation of the law of self-defense with all its limitations; yet of necessity he determines that the situation before him is one which under [p566] the law, as he understands it, gives him a right to take the life of his assailant. He is judge, jury, and sheriff. Indeed, this is not denied, but it is thought that the language used by the court is too metaphysical. In other words the court has stated what is strictly and accurately true. Yet because it is abstract and metaphysical this court will presume that the jury did not understand and might be misled by it. When did it become a rule of law that a court of error should presume that the jury in a trial court were ignorant? When ever before was it heard that a verdict was to be set aside by an appellate court on the ground that a juror may have been misled by an instruction of the trial court, when that instruction, it is conceded, is strictly accurate and applicable to the case?
For these reasons I dissent, and I am authorized to say that MR. JUSTICE BROWN concurs with me in this dissent.

## Notes

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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