United States v. Mingo

26 F. Cas. 1270, 12 Curt. 1, 17 Law Rep. 435, 1854 U.S. App. LEXIS 522

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: June 5, 1854
• Status: Published

Opinion

Before the argument,

CURTIS, Circuit Justice,

stated to the counsel' that “in a capital case the junior counsel has a right to argue at length the law and the facts, but only one counsel has a right to close. In this case, however, as all the witnesses are government witnesses, and none were called for the de-fence but those whom the government declined to examine, two counsel will be permitted to close, in full, on the law and facts, not, however, making this a precedent for cases in which the prisoner’s counsel calls witnesses not examined before the grand-jury, and sworn on the part of the government.”

In summing up to the jury, CURTIS, Circuit Justice, said: To bring this case within the jurisdiction of the court, the jury must be satisfied, 1. That the offence was committed on board an American vessel; 2. That the deceased and the prisoner were of the crew; 3. That the prisoner was first apprehended within this district. The first proposition is admitted by his counsel; the second, there is much and uncontradicted evidence to prove. Of the third, no direct evidence has been offered. But you have evidence to show that the ship was bound to Boston, and that the defendant is in custody in Boston. It is not usual to call upon the government to offer direct evidence on this point, and during the introduction of the evidence, the defendant’s counsel made no point upon it, so as to induce the government to bring forward direct evidence. The evidence now in the case to which I have alluded, is sufficient in law to warrant the jury in finding the fact.

The fact of the killing being proved, and not denied, one of three views may be taken of it: First, that Mingo first attacked Johnson; that he made the attack with a dangerous weapon; and that though Johnson resisted with a dangerous weapon, Mingo killed him. If a man attacks another with a dangerous weapon, and kills him, no sufficient provocation appearing, the law presumes malice from the act. And if you find that Mingo attacked Johnson with a dangerous weapon, and killed him, without other provocation than words, it is murder. On the question of the burden of proof, after consultation, the court are of opinion that it is incumbent upon the government to prove a felonious killing; and if upon the whole evidence the government has failed to satisfy the jury beyond a reasonable doubt, that the killing was felonious, the verdict must be, not guilty. After recapitulating the evidence, the judge continued: It is your province, gentlemen, to determine whether such a case is proved; but I am at liberty to say, and feel it my duty to say, that I do not think the government has proved a case of murder beyond a reasonable doubt.

The second view is, that previous ill-will was borne by each of these men to the other; that, being near each other on deck, words passed between, them; and that both being excited and willing to fight, they armed themselves, simultaneously, or nearly so, with dangerous weapons, both fought, and Johnson was killed. You will say whether it is made out beyond a reasonable doubt, that it was a mutual combat, in which both engaged willingly. If so, it is manslaughter. If the defendant entered into the combat willingly, he cannot say that he killed his adversary in self-defence. Where such encounters take place deliberately, as in duels, and .homicide ensues, it is murder; but where it is in hot blood, such homicide is manslaughter.

Third. If it was not a mutual combat, but Johnson made the first attack on Mingo with a deadly weapon, yet if Mingo could reasonably have avoided killing his adversary, without certain and immediate danger of his life, or of great bodily injury, the homicide is not excused as being in self-defence. But in considering whether Mingo could reasonably have avoided killing Johnson, the law does not demand of him the same coolness and the same deliberate exercise of judgment, which you, viewing the circumstances after the event, and being in safety, can and will exercise. It requires him not to avail himself of such an occasion to indulge his passion. He must have acted from a desire to protect his own life, and not from a desire to kill his adversary; and he must have actually believed, at the moment, that the only way to protect himself from certain and immediate danger of his life, or of great bodily harm, was to stab his adversary; and the circumstances must have been such, that you can see that Mingo might, reasonably, and did actually so believe, at the time he struck the fatal blow. If the circumstances were such as that you can see these things, then you have a right to say, and should say, he acted in self-defence, and is not guilty of -manslaughter.

The jury found the defendant not guilty.