# Tucker v. United States/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
United States Supreme Court
151 U.S. 164
Tucker v. United States
The only exception argued to any ruling upon evidence was to the admission, in contradiction of the defendant's own testimony at the trial, of the application made by him on oath, a few days before, for the summoning and payment by the United States of witnesses in his behalf.
That application was made under section 878 of the Revised Statutes, which is as follows: 'Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evidence is material to his defense; that he cannot safely go to trial without them; what he expects to prove by each of them; that they are within the district in which the court is held, or within one hundred miles of the place of trial; and that he is not possessed of sufficient means, and is actually unable to pay the fees of witnesses,-the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States.'
The objection to the admission of this affidavit or application was founded on section 860 of the Revised Statutes, which is as follows: 'No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.'
The paper in question was neither a 'pleading of any party,' nor 'discovery or evidence obtained from a party or witness by means of a judicial proceeding.' 'Pleadings of parties' are the allegations made by the parties to a civil or criminal case, for the purpose of definitely presenting the issue to be tried and determined between them. 'Discovery or evidence obtained from a party or witness by means of a judicial proceeding' includes only facts or papers which the party or witness is compelled by subpoena, interrogatory, or other judicial process to disclose, whether he will or no, and is inapplicable to testimony voluntarily given, or to documents voluntarily produced. The clause as to discovery or evidence is conceived in the same spirit as the fifth amendment of the constitution, declaring that no person shall be compelled in any criminal case to be a witness against himself; and as the act of March 16, 1878, c. 37, (20 Stat. 30,) enacting that a defendant in any criminal case may be a witness at his own request, but not otherwise, and that his failure to make such request shall not create any presumption against him. Boyd v. U.S., 116 U.S. 616, 6 Sup. Ct. 524; Wilson v. U.S., 149 U.S. 60, 13 Sup. Ct. 765; Lees v. U.S., 150 U.S. 476, 14 Sup. Ct. 163.
The application for witnesses or 'affidavit,' as it is called in section 878, is clearly not a pleading of the defendant for the purpose of defining the issue to be tried in the case; nor is it obtained from him by any judicial process, which he is obliged to obey; but it is made of his own motion, and it states such facts, and such only, as he, being in no way interrogated or cross-examined, may choose to state. His oath to the nature and materiality of the desired testimony, and to his own want of means, is required merely to establish the good faith of his demand that particular witnesses shall be summoned and paid by the government.
The affidavit being neither a 'pleading' of the defendant, nor 'discovery or evidence obtained' from him, within the meaning of the statute, the statements therein, as in any other paper voluntarily signed by him, whether upon oath or not, were competent evidence to contradict his testimony upon the stand.
In the matter of instructions to the jury, the only exception reserved at the trial was to the refusal to give the instruction requested as to the effect of the defendant's drunkenness upon his guilt.
In Hopt v. People, 104 U.S. 631, this court recognized the general rule that, at common law, voluntary intoxication affords no excuse, justification, or extenuation of a crime committed under its influence, and went no further in favor of admitting evidence of intoxication than to hold that a defendant, indicted under a territorial statute establishing degrees of murder, and requiring deliberate premeditation to constitute murder in the first degree, might show that, at the time of the killing, he was in such a condition, by reason of drunkenness, as to be incapable of deliberate premeditation.
No act of congress has established degrees of the crime of murder. By the common law, neither deliberate premeditation, nor express malice or intent to kill, is required to make an unlawful homicide murder, but malice may be implied from the use of a deadly weapon or other significant facts; and any unlawful killing without malice, express or implied, is manslaughter. It has often been held, and was formerly considered to be settled law, that a wanton killing without provocation could not, by reason of being done by a man voluntarily intoxicated to any degree, not amounting to insanity, be excused, or reduced from murder to manslaughter. U.S. v. Cornell, 2 Mason, 91, 111; U.S. v. Drew, 5 Mason, 28; U.S. v. McGlue, 1 Curt. 1, 13; People v. Rogers, 18 N. Y. 9; Kenny v. People, 31 N. Y. 330; Com. v. Hawkins, 3 Gray, 463; State v. Johnson, 41 Conn. 584; State v. John, 8 Ired. 330; 1 Bish. New Crim. Law, §§ 400, 401. But that view has not been universally accepted in recent times, and we are not required in the present case to express any opinion in regard to it.
The instruction requested was that if the defendant, at the time of killing the woman, was so drunk as to render the formation of any specific intent to take her life impossible on his part, and, before becoming drunk, he entertained no malice towards her, and no intention to take her life, he could not be convicted of murder. This instruction was refused, because it had been covered by the instructions given. In those instructions the jury were distinctly told that if the defendant, at the time of the killing, although not insane, was in such a condition of mind, by reason of drunkenness, as to be incapable of forming a specific intent to kill, or to do the act that he did do, the grade of his crime would be reduced to manslaughter. The instructions given were quite as favorable to the defendant as that which he requested; and the fact that the court instructed the jury in its own words, and declined to adopt the language of the counsel to the same effect, affords no ground of exception. Anthony v. Railroad Co., 132 U.S. 172, 10 Sup. Ct. 53.
The other instructions to which the defendant objected are not subject to review, because the bill of exceptions does not show that he excepted to them. U.S. v. Breitling, 20 How. 252.
Judgment affirmed.

## 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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