# Tucker v. United States

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United States Supreme Court
151 U.S. 164
Tucker v. United States
Statement by Mr. Justice GRAY:
This was an indictment, found at November term, 1892, of the circuit court of the United States for the western district of Arkansas, against Marshal Tucker for the murder of Lula May, a white woman, by shooting her with a pistol, at the Choctaw Nation, in the Indian country, in that district, on October 15, 1892.
The defendant pleaded not guilty, and, by agreement of the parties, the case was ordered to be continued to the next term, and setdown for trial on February 23, 1893.
On February 21, 1893, the defendant, by his attorney, filed an application, dated February 20th, and signed and sworn to by him, pursuant to section 878 of the Revised Statutes, setting forth that certain persons named were material witnesses for his defense; that 'by the three first-named witnesses, who reside at South McAlester, he can show that he was so intoxicated at the time of the alleged homicide that he had no knowledge of what he was doing, and was incapable of forming any design;' that 'these statements he believes to be true, and he is not possessed of sufficient means, and is actually unable, to procure the attendance of said witnesses,' and therefore praying that they might be summoned at the expense of the United States. Thereupon the court ordered that the legal expense of procuring the testimony of those witnesses be paid by the United States, and that a subpoena be issued for them returnable February 23d.
At the trial, in March, 1893, the government introduced evidence tending to show that the woman killed was an inmate of a house of ill fame, and that the defendant, on the evening of October 15, 1892, went to the house, and asked for admittance, and, the door not being opened, fired a pistol through the door, and killed the woman.
The defendant called none of the witnesses named in his application, but, having offered himself as a witness in his own behalf, testified as to what took place at the time of the killing, and, among other things, that he did not fire any shot at all; that, after he had asked to be admitted to the house, a shot was fired by some other person, whether from the inside or the outside he did not know, and afterwards his pistol was put into his hand by another man, whom he named.
On cross-examination, the defendant testified that he signed the application aforesaid; that he had not since changed his mind about whether he knew what was going on there or not; that the witnesses named were present, and saw him intoxicated at the time of the killing; that the defense then intended was not that he was crazy; and further testified that, on the night of the killing, he was not so drunk as not to know what he was doing, and everything that was going on.
The district attorney, in rebuttal, offered in evidence the application for witnesses. The counsel for the defendant objected that it was incompetent, under section 860 of the Revised Statutes; but the court admitted the paper in evidence, and the defendant excepted to its admission.
The defendant contended that he did not kill the woman; that, if he did, his crime was manslaughter only; and that, at the time of the killing, he was intoxicated.
The substance of the instructions of the court upon the subject of intoxication sufficiently appears by the following extracts: 'If the statement of the defendant himself that he did know what he was doing is true, and he intentionally drew the pistol, presented it, and fired it so as to take the life of this woman, that would not be a state of case where there would be that absence of that premeditation which goes to make malice aforethought. If he was in a condition of mind, at the time that he was so acting, that his mind was so disturbed by drinking, by a drunken condition, that he was incapacitated, so that he was incapable of forming any intent, or intent to do a wrongful act that might result in death, that may be taken into account, for the purpose of showing a state of case where the crime would be of less grade than that of murder.' 'When a man's mind is in a condition where he can form an intent to do a wrongful act that may result in murder, and he does deliberately form that intent, as evidenced by the drawing and presenting and firing his pistol, then intoxication does not mitigate his offense. If he is carried beyond that, although he may not be absolutely insane, so that his will power is gone, so that he has no control over it, so that he cannot restrain it, while he may not be insane, then there is an absence from the case of what is denominated by law as 'malice aforethought,' and his offense would be manslaughter.' 'You are not to excuse him to the extent of mitigating his crime because he was drunk, unless he was in that condition where he was incapable of forming an intent, where he was incapable of coming to a conclusion; and it does not mean alone incapable of forming a specific intent to kill, but it means incapable of forming a specific intent to do an act that may kill, that goes so far as to reduce the grade of the crime. If he could not form a specific intent to do the act he did do, then that would reduce the grade of the crime, because of drunkenness.' The defendant requested the court to instruct the jury that if they believed from the evidence 'that the defendant was, at the time of the killing of Lulu May, drunk, and that before becoming drunk he entertained no malice towards her, and had no intention to take her lefe, and that his intoxication was so deep as to render the formation of any specific intent to take life impossible on his part, he could not be convicted of murder.' This request was refused, 'because the law had been correctly given on the subject of drunkenness;' and to the refusal of the court to so instruct the jury the defendant at the time excepted.
The bill of exceptions further stated that the defendant objected to the instructions given by the court to the jury in several particulars, but did not show that an exception was taken to any of those instructions.
The defendant was convicted of murder, and sentenced to death, and sued out this writ of error.
A. H. Garland, for plaintiff in error.
Asst. Atty. Gen. Conrad, for the United States.
Mr. Justice GRAY, 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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