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

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## Dissenting Opinion

    Brewer

## Linked case(s)

157 U.S. 675 164 U.S. 492
United States Supreme Court
150 U.S. 551
Allen v. United States
Error to the Circuit Court of the United States for the Western District of Arkansas
No. 969 Argued: or Submitted Nov. 16, 1893 --- Decided: Dec. 4, 1893
A Statute of Arkansas, Digest of 1884, 425, c. 45, § 1498, provides that "an infant under twelve years of age shall not be found guilty of any crime or misdemeanor." The courts of that State have held, Dove v. State, 37 Arkansas, 201, that the common law presumption that a person between the ages of twelve and fourteen is incapable of discerning good from evil, until the contrary be affirmatively shown, still prevails. A homicide was committed in May. A young person, charged with the commission of it, testified on his trial in the Circuit Court for the Western District of Arkansas, in the following February, that he would be fifteen years old the coming March. The court charged the jury that the prima facie presumption as to lack of accountability terminated at eleven years of age. Held, that, although the accused by his testimony had shown that he had passed the age of fourteen when the crime was committed, yet, as the mistake might have prejudiced him with the jury, it was error.
To direct the attention of the jury to the contemplation of the philosophy of the mental operations, upon which justification, or excuse, or mitigation in the taking of human life may be predicated, is to hazard the substitution of abstract conceptions for the actual facts of the particular case, as they appeared to the defendant at the time.
When the defence, in a case of homicide, is justification, or excuse, or action in, hot blood, the question is one of fact which must be passed upon by the jury in view of all the circumstances developed in evidence, uninfluenced by metaphysical considerations proceeding from the court.
The question whether the defendant in a capital case exceeded the limits of self-defence, or whether he acted in the heat of passion, is not to be determined by the deliberation with which a judge expounds the law to a jury, or with which a jury determines the facts, or with which judgment is entered and carried into execution.
ALEXANDER ALLEN was indicted at the November term, 1892, of the Circuit Court for the Western District of Arkansas for the murder of Phillip Henson in the Cherokee Nation, on May 14, 1892, and, at the February term, 1893, of that court was tried upon the indictment, found guilty of the crime charged, [p552] and, after the overruling of a motion for new trial, was sentenced to death. A writ of error was then allowed to this court.
The evidence tended to show that Allen was a colored boy, of about 14 years of age at the time of the homicide, working on the farm of Albert Marks in the Cherokee Nation, some three or four miles from Coffeyville, Kansas, where Marks lived; that on Thursday, May 12, 1892, he was sent to look for some horses belonging to one Morgan, and was accompanied by another colored boy, James Marks, who was then twelve years old; that these boys met Phillip Henson, the deceased, a white boy, eighteen years of age, with whom were George Erne, aged fourteen, and Willie Erne, aged thirteen, also white, and some words ensued between Henson and Allen. In respect of this, the Erne boys testified to nothing of particular moment, but the acused and James Marks testified to great bitterness in the language used by Henson, including threats and oaths. On Saturday, May 14, Henson and the two Erne boys had left the Erne house, and were going through a wheat field towards a lake in an easterly direction, carrying in their hands willow sticks with the bark peeled off, with which to kill frogs to use as bait in fishing, and when about half way across the field they saw on the eastern side of the fence which separated it from the land of Albert Marks, Allen, and Harvey Marks, a brother of James, then eleven years of age. An altercation ensued, in which Allen shot Henson with a pistol, from which wound he died in a few minutes. According to the evidence of the Erne boys, Allen took the pistol out of his hip pocket, removed the scabbard, handed it to Harvey Marks, and climbed through the wire fence from the east side to the west side, struck Henson with his left hand, and then with the pistol in his right hand shot Henson twice, and shot George Erne through the arm. Allen and Harvey Marks testified that Henson and his two comrades came through the fence on the west side into Marks' ground, and Henson struck Allen over the head with a stick; that Henson and Allen closed in and wrestled, and Henson threw Allen and had him down, and George Erne then struck Allen on the arm with a [p553] stick; that Allen, while lying on the ground with Henson on him, drew the pistol from his pocket, and shot Henson, who, after he was shot, ran towards the fence, about forty steps off, and climbed through it back into the wheat field. His dead body was found lying in the field about thirty or thirty-five steps from the fence. The face seemed bruised, as if he had been struck in the mouth. Evidence was given that the tracks of the three boys were plain and distinct the next day in the soft ground, going in a northeasterly direction in the field towards the lake, and that the wheat was trampled down, and there was blood on the ground at the distance of 38 steps from the fence; that from this point to the fence there was a single track made by shod feet coming over the fence westward, while the other three tracks were made by bare feet; and that Henson and the two Erne boys were barefooted on that occasion, while Allen had on either boots or shoes. That there was short grass on the east side of the fence, and, although there were tracks around there, it was difficult to discover anything. There was also evidence that Allen, after the shooting, ran back to the house, obtained his satchel, went to Coffeyville in a cart, and thence on foot to Edna, Kansas; that Clifford, the United States marshal for the district of Kansas, and one Knotts, found him at Edna, about half-past two that day; that he fled, and they pursued and caught him; that Knotts returned with him to Coffeyville, and on the way asked him if he knew that he had killed that boy, and he said No, that he knew he shot him, but not that he killed him; and then stated that there was a man shot in Oswego, and that nothing was done with him, and being asked what he shot the boy for, he replied he was afraid they would hurt him with their sticks; that they did not strike him with sticks, but he was afraid they would; that they had had trouble a few days before. It further appeared that he told Clifford he "didn't propose to be beaten with clubs;" that the deceased struck him over the arm; and that Clifford examined his person on the 16th, and found a bruise on his left arm. The evidence further tended to show that on the morning of the 14th of May, Allen did not have his pistol with him, but, having started with a load of [p554] hay to town, met Harvey Marks coming down to the farm for milk, and was told by William Marks (Harvey's grandfather) to go back with Harvey, which he did, and then went into the farmhouse, and took the pistol from his overcoat pocket, where he had placed it two days before. This pistol was found in his satchel when he was arrested, and was a six-shooter, with a rubber scabbard on it, and one load in it. Three empty cartridge shells, which fitted the pistol, were found in his pocket, and Allen, when asked by Clifford to account for the empty shells, stated that he had emptied his pistol shooting rabbits on his way out there from Coffeyville. When asked on the stand why, when he went to Coffeyville, he had not gone and seen Albert Marks about the matter, and told him what had occurred, or hunted up Mr. Morgan, Allen replied because he did not think it was worth while; "It wasn't my business, because I had done it, to go around and tell every one about it." James and Harvey Marks were cross-examined to show that there were discrepancies between their statements on the witness stand and statements which they had made to the marshal May 21, and which were taken down in writing by him at the time.
The court in the course of the charge to the jury stated that it was necessary that he should give "the legal definition of all these conditions that I have named, that is, murder, manslaughter, and a rightful killing under the law of self-defense, called a killing in self-defense;" and, after defining murder and explaining malice, express and implied, and giving the definition of manslaughter, with comments, all at length, proceeded thus:
"Now, in this connection, if you believe, at the time of this killing, Henson and these other boys had entered into a fight, had come up and attacked the defendant with sticks, as is ciaimed by him, and as is claimed by some of these other witnesses, and that he killed him at that time, and under such circumstances, if it was not done in a brutal and unnatural and specially wicked way, that would be a state of case where manslaughter would exist, provided the defendant by his actions of a violent character and his conduct did [p555] not bring on the conflict of that kind. If he brought it on, if he precipitated it by a violent act upon his part, then there could be no mitigation in it; there could be no self-defense, as I will tell you presently. But if, on the other hand, he went up and put his pistol across that fence, and jumped over the fence, and attacked the Henson boy, struck him in the mouth, and at the same time attempted to shoot him, and subsequently, in the consummation of that attempt, did shoot him, and followed up that shooting when he was retreating, and shot him in the back, that would be a state of case where there would be no manslaughter in it. It would be murder under the definition of that crime as I have given it to you.
"We come now to the other definition. It has been invoked in this case. And I give it in these cases whether it has been invoked or not, because we can frequently reason and come to a conclusion by means of elimination, just as in algebra you can eliminate certain quantities from a certain side of an equation, and thus get at a certain quantity, and get at a methodical conclusion in a reasonable way in that manner. Now, if we have the definition of these three conditions. and if you can eliminate two of them, you necessarily drop down to the other condition as existing, because there cannot be but one which is true. The conditions are the opposite to each other, and you cannot find the existence of any two of them in a case. There is one certain condition that is applicable to the facts. Therefore, when you have these conditions all before you, you can the better say whether it is murder or manslaughter, or a case of justifiable homicide. [Now, what is justifiable homicide? 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? This is a mighty power in the hands of the citizen. It is a mighty power, yet it is to be applied when [p556] it belongs to him because it is the law of necessity, and it is given to him because it is the law of necessity; it is given to him because at the time he executes it in a deadly way his own life is either actually or really in deadly peril from which he cannot escape except by the use of that deadly means, or, in your judgment, taking into consideration his condition, there was reasonable ground to believe there was peril. That is what is meant by it. It is a law of protection; it is a law of necessity. This is the law you are sitting here to execute. It is a law of self-defense. You are to execute it for the sake of society, for the protection of the members of society against the acts of violence of the wicked, which would destroy their rights to their property, jeopardize their liberties, and destroy their lives. It is all a law of self-defense. The necessity is so great, in contemplation of the law, that the individual can take human life. Now, I will give you this principle of the law as defined by the leading court in this country, and a definition that has never been shaken by any court, and it is stated in very brief language, but there is a great deal in it. There are two propositions. One is a case where the danger to life is actual, is real, at the time of the killing, and that the party cannot escape from it by the exercise of reasonable means, and he therefore, to save his own life, may act, and act to the extent of taking life. I read to you that first proposition, and it is this: 'A man who is in the lawful pursuit of his business'—that means he is doing what he has a right to do, he is doing no wrong, and when in that condition 'he is attacked by another, under circumstances which denote an intention to take away his life or to do him some enormous bodily harm, he may lawfully kill the assailant, provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power.' He is doing what he had a right to do, and when so situated he is attacked by another in such a way as to indicate from the nature of the attack a purpose to take away his life; not that he is assaulted in a slight way; you could not kill him for that; [p557] the law of self-defence is a law of proportions as well as a law of necessity, and it is only danger that is deadly in its character that you can exercise a deadly act against. He is attacked by another in such a way as to denote a purpose to take away his life, or to do him some great bodily harm, from which death may follow, and in such a case he may lawfully kill the assailant, when, provided he use all the means in his power otherwise to save his own life or to prevent the intended harm, such as retreating as far as he can or disabling him without killing him, if it be in his power. The act coming from the assailant must be a deadly act under this proposition. It must be an act that is hurled against him, and that he has not created it, or created the necessity for it, and it must be an act of which he cannot avoid the consequences. If he can, he must avoid them. He must get out of the way of the act if he can, rather than take upon himself the responsibility of taking a human life.]
"Now, the other proposition is a case where the danger may not really exist at all. It may not have any existence, but there must be at the time he takes life that which would satisfy a reasonable man, situated as was the defendant, that it did not then and there exist; and a man may act upon its appearance, but there must be an appearance. A man cannot act upon bare suspicion of his own mind. He cannot contemplate a state of case that does not exist. If he has that confronting him which would lead a reasonable man, situated as he was, to the belief that there was deadly danger, he could act upon that condition, and he may kill, provided he cannot avoid what seems to be real danger."
To the giving of that part of the charge included in brackets in the foregoing the defendant at the time excepted.
The court also charged the jury as follows: "Now a word as to the accountability of this defendant. The law says that when a child between the years of seven and eleven commits a crime, he is, presumably, not held accountable, yet this presumption may be overcome by proof. But from eleven years up the law contemplates that he is accountable for his criminal acts; that he is said to be conscious of right and wrong so [p558] as to be held responsible by the law; and to take away that condition it requires the production of proof showing the lack of accountability. In legal contemplation, from eleven years upwards he is accountable." To the giving of this part of the charge the defendant at the time excepted.
An exception was also taken to certain comments of the court in reference to the testimony of the defendant.
Errors were assigned upon the exceptions so taken.
Mr. A. H. Garland for plaintiff in error.
Mr. Assistant Attorney General Conrad for defendant in error.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

## 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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