Watkins v. United States

41 S.W. 1044, 1 Indian Terr. 364, 1897 Indian Terr. LEXIS 28

• Court: Court Of Appeals Of Indian Territory
• Decided: August 27, 1897
• Status: Published

Opinion

Springer, C. J.

The appellant was indicted October 12, 1896, at Ardmore, in the Southern district of the Indian Territory, for the murder of Wyatt Williams on the 10th day of the same month. On the 18th day of the same month the appellant was placed on trial, and on the Thursday following the jury returned into court a verdict of guilty, in manner and form as charged in the indictment, adding to the verdict the words, “ asking the clemency of the court.” On the 10th day of November the motion for a new trial was .overruled, and the sentence of death was pronounced on the appellant by the court, fixing the date of his execution for the 19th day of February, 1897. An appeal in due form has been taken to this court, and the execution of the sentence of death has been stayed until the appeal has been heard.

Criminal law Peremptory challenges.

The first error assigned presents the question as to whether the laws of the United States in force in all the states, or the laws of Arkansas, put in force in the Indian Territory, govern in the selection of juries in capital cases in the United States court. The United States Revised Statutes (section 819) limits the government to five peremptory challenges in capital cases, while section 2289 of Mansfield’s Digest of the Laws of Arkansas, in force in the Indian Territory, allows the prosecution ten challenges in such cases. Chapter 46 of Mansfield’s Digest, entitled “ Criminal Procedure,” was put in force in the Indian Territory, both by the act of May 2, 1890 (section 33), and by the act of March 1, 1895 (section 4). By the former act the provisions of this chapter were qualified by the words, ‘ ‘ as far as they are applicable,’’ but by the last named act there was no qualification or exception whatever. We are therefore’of the opinion that in capital and other felony cases the provisions of section 2239 of Mansfield’s Digest, which allow the prosecution 10 peremptory challenges, are in forcé in the Indian Territory, and that the court did not commit any error in allowing that number of challenges in this case.

The counsel for appellant withdraws his second assignment of error, and no reference thereto will be made. The third, fifth and sixth assignments involve the same questions of law, and they will be considered together. The third assignment is that the court erred in charging the jury as follows: “ In order to justify homicide on the ground of self-defense, it is not necessary that there should be an actual or real danger to the life or person of the party doing the killing, if there be an appearance of danger caused by the acts or demonstrations of the party killed, or by words coupled with the acts or demonstrations of such party; and if such acts or demonstrations, or such words coupled with them, produce in the mind of the party slaying a reasonable expectation or fear of death or some serious bodily injury to himself, the party killing will be justified, if he acts upon such appearances of danger, and under such reasonable expectation or fear.” The fifth assignment was that the court erred in refusing to charge the jury, as requested by appellant, as follows: “The jury are instructed that, in order to justify homicide upon the ground of self-defense, it is not necessary that the party killing should have been in actual danger of losing his life, or of receiving serious bodily injury;' at the hands of the person killed at the time of the homicide; but it is sufficient to jusify the killing if the acts, or words coupled with the acts, of the party killed, viewed from the defendant’s standpoint,■ were such as to reasonably cause the party killing to appre-rend that he was in apparent danger of losing his life or raving serious bodily injury inflicted upon him by the party rilled, he would be justified in killing his antagonist; and t is immaterial whether the danger was real or not, it being [ufficient, in law, to justify homicide, if it only be apparent.” 'he sixth assignment was that the court erred in refusing ¡o charge the jury as follows: “The jury are instructed hat in determining as to whether the defendant is guilty of he offense charged against him they must consider the facts t,nd circumstances detailed in evidence from the defendant’s standpoint as they reasonably appeared to him at the time, ,ndnot from any other standpoint.” Counsel for appellant lo not contend that both of these instructions, which were refused, should have been given. The last instruction quoted having been refused, counsel relied upon the other as stating the law in a more modified form. We are of the opinion that the last-named instruction was properly refused. • It is too general in its application. In ‘ ‘ determining whether the defendant is guilty of the offense charged against him ’ ’ the jury must pass on every phase and feature of the case. It is only where the homicide is justified on the ground of self-defense, and where the defendant is to judge as to the danger in which he is placed at the time, that the facts and circumstances which constitute the danger are to be viewed from the defendant’s standpoint. But we are of the opinion that the first-named instruction should have been given as requested. It is true, the principle embodied in it was given in a modified form. The United States attorney insists that the instruction given by the court on this subject stated substantially all that the rejected instruction covered. He concedes the contention of ■< appellant’s counsel “ that the defendant is justified in acting upon appearances as they manifest themselves to his mind, ’ ’ and insists that it cannot be reasonably contended “that a jury of sane men could understand anything else from the charge of the court.” If the United States attorney regarded the instruction asked by the defendant as substantially the same in effect as that given by the court, it would have been the better practice to have conceded the fact at the time of the trial, and requested the court to give the instruction in the very language requested by counsel for defendant. This would have kept this assignment of error out of the record. The able argument of the United States attorney on this point goes far to sustain his contention that the two instructions are substantially the same in effect. But it ought not to require the assistance of an able lawyer, having a mind trained to statutory constructions, to' make clear the meaning of an instruction given to the jury in a capital case. The language should be plain., comprehensive, easily understood and free from doubt. But we do not agree with the learned counsel for the government that the two instructions are in all respects substantially the same. The words, ‘ ‘ from the iefendant’s standpoint, ” in the light of all the testimony in the case, are important, and the defendant was entitled to whatever meaning attaches to them in this case. The court of appeals of the state of Texas correctly states the law on this point. In the case of Bell vs. State, 20 Tex. App. 450, that court says: “ To whom must the appearance of danger — the apprehension of the party killing — reasonably ippear? To the jury, after hearing all the evidence, after ascertaining the real facts, a great many of which might rot, could not be, and were not known to defendant at the ime of the killing? Or must the real or apparent danger appear to defendant, at the time of the homicide, to be reasonable? We think the latter is correct. Each juror nust place himself in the position of the defendant at the ime of the homicide, and determine from all of the facts as hey appeared to the defendant at the time of the killing whether his apprehension or fear of death or serious bodily íarm was reasonable; and, if so, they should acquit. For, ays Mr. Wharton, whether the danger is apparent is to be letermined from defendant’s standpoint.” In the case at iar there were many facts, as appears by the evidence, vhich were known to the defendant which were not known >y any of the eye witnesses, and which facts must have .etermined the state of his mind from his own standpoint at he time. It appeared from the evidence that threats against efendant, which were made by the deceased two or three reeks prior to the killing, had been brought to his knowl-dge, and it even appeared from defendant’s testimony that e regarded the deceased as one “ always waiting to get the dvantage of a man,” andas aman “ who would kill another l he got the drop on him that deceased had actually on another occasion, “tlirowed a shotgun down on him, and started to kill him. ’ ’ These were matters which doubtless materially assisted in determining defendant’s standpoint. They were not a part of “the appearance of .danger which were caused by the acts or demonstrations of the party killed, or by words coupled with the acts or demonstrations of such party.” But they were facts which produced in the mind of the defendant perhaps a greater fear of death or some serious bodily injury to himself than the acts or demonstrations at the time of the killing. The jury should have been told that the defendant had the right to view such acts or demonstrations from his own standpoint, from his own knowledge of previous threats by the deceased, and from his own opinion as to the dangerous character of the party killed.

Instruction. Instruction Instruction. " should he clear.

The opinion of the Texas court of appeals in the case of Gonzales vs State, 28 Tex. App. 131, 12 S. W. 735, seems quite appropriate in this case. We quote as follows: “There are objections to the charges, which, in our opinion, are sound ones. Upon this issue the charge is, to our minds, not so clear, comprehensive and complete as it should have been. In explaining the rule as to apparent danger it does not distinctly direct the jury that the danger must be judged from the defendant’s standpoint, and no other, and from all the circumstances proved. While the charge undertakes to present this principle of law, it falls short, we think, of presenting it clearly, affirmatively, and accurately. Minds uneducated in the nice distinctions of the law would not be likely to discover in the charge the well-established rules relating to apparent danger. These rules should have been presented so plainly and appositively to the evidence as that the jury could not reasonably have overlooked or misunderstood them. The jury should have been told that if, at the time the defendant fired the fatal shot, it reasonably appeared to Mm from the circumstances in the case, viewed from his standpoint, that the deceased was then about to shoot him with a gun or pistol, he was justified in killing the deceased, although in fact they might believe that he was in no danger at the time of being shot by the deceased. ” The opinion in the Gonzales case, as quoted above, should have been qualified, if given as an instruction to the jury in the case at bar, by adding the words: “ Unless the jury further believe from the evidence that the difficulty was commenced by the defendant for the purpose of taking the life of the deceased, or inflicting upon him a great bodily harm.” See Adams vs People, 47 Ill. 376. This feature of the case will be referred to later on in this opinion. The court fully concurs with the opinion of the supreme court of the United States in Allison’s case, 160 U. S. 216, 16 Sup. Ct. 257, in which the learned chief justice said: “ What is or is not an overt demonstration of violence varies with the circumstances. Under some circumstances a slight movement may justify instant action because of reasonable apprehension of danger. Under other circumstances this would not be so. And it was for the jury, and not for the judge, passing upon the weight and effect of the evidence, to determine how this may be. In this case it was essential to the defense that the jury should be clearly and distinctly advised as to the bearing of the threats and the appearances of danger at the moment from the defendant’s standpoint. ” See, also, Campbell vs People, 16 Ill. 17; Maher vs People, 24 Ill. 241; Schnier vs People, 23 Ill. 17.

Instruction.

The fourth assignment of error is as follows: That the trial court erred in charging the jury, at the request of counsel for the government, as follows: “The jury are instructed that a party cannot himself provoke a difficulty, and then slay his adversary upon the ground of self-defense. So that, if you find from the evidence in this case, beyond a reasonable doubt, that the defendant, Wm. E. Watkins, himself provoked the difficulty with the deceased, he could not slay Wyatt Williams in self-defense, unless he himself, after provoking the difficulty, withdrew from the same, in which event his right of self-defense would revive.” This instruction depends for its correctness upon the facts of the particular case in which it may be given. If the facts proven in the case showed that the party who provoked the difficulty did so by attempting to feloniously take the life of his adversary <?r inflict upon him great bodily injury, or was about to commit a known felony, such as robbery, rape, burglary or a like crime, he could not then slay his adversary upon the ground of self-defense. Such a provocation would forfeit all right to self-defense. In such case the assailed may slay his adversary, and be justified under the law; but, if the party who provoked such a difficulty should slay his adversary, he would be guilty of murder. If the facts disclosed that the party who provoked the difficulty was only guilty of a misdemeanor, that he only intended to chastise his. adversary by a simple assault and battery, using no deadly weapon, and intending to inflict no serious injury, he would not entirely forfeit his right of self-defense, however reprehensible his conduct might have been. He would still have what is called an imperfect right of self-defense. If, under such circumstances, the assailed should seize or draw a deadly weapon, and attempt to kill his assailant, the latter, in order to save his own life, or prevent enormous bodily injury, might slay his adversary. In such case he would not be guilty of murder, but of manslaughter. Adams vs People, supra. Again, if the party who provoked the difficulty did so by the mere use of words, however offensive and insulting they may have been, but accompanied by no overt act or demonstration of violence, and without any feloneous intent, and if the party assailed should seize or draw a deadly weapon and attempt to kill his adversary, the latter, in order to save his own life, or to prevent enormous Dodily injury, might slay his adversary; and such being the facts, he would not be guilty of murder, but would be justified, or at most be guilty of manslaughter, if, from all the fircumstances of the case, such a verdict would be required. A. person might inadvertently provoke a difficulty without my intention of even offending another, and, if so, could it se pretended that his right of self-defense was in any man-íer impaired if the party offended should attempt his death >r great bodily injury? But a person who, having malice in lis heart, should seek his enemy for the purpose of killing lim, and should provoke him to resistance by any means vhatever, in order to obtain a pretext for killing him in self-lefense, would forfeit entirely such right; and if he should, mder such circumstances, slay his enemy, he would be guilty >f murder, regardless of the kind or character of the provo-;ation offered, State vs Hays, 23 Mo. 287; note to Stoffer’s case, Horrigan & T. Cas. Self-Def. 220-238. Hence, in view >f the many kinds of provocation which occur in homicides, md to which the courts must apply the law so as to make it applicable to each particular case, it becomes necessary in his case to refer to the testimony in reference to the provo-;ation of the difficulty; for, in view of the fact that the Lefendant did provok^ the difficulty, if there was any evidence n ■ the case upon which the jury might have mitigated the iffense from murder to a lower grade of homicide, the giving >f this instruction, excepted to in the fourth assignment of ¡rror, was prejudicial to the rights of the defendant, and was uch an error as entitles him to a new trial. Keener vs state, 18 Ga. 194; State vs Benham, 23 Iowa 154. The tes-imony shows that three pistol shots were fired at the time if the homicide; two by the defendant and one by the de-eased. There was a random shot fired by the defendant bout 15 minutes before the homicide, but this shot was not ,imed at the deceased, and there is no evidence in the record ending to show that this random shot had any bearing on the subsequent killing of the deceased. Both wounds received by the deceased were regarded by the physicians as fatal, especially the one through the right lung and the heart. The shot fired by the deceased did not hit the defendant. We do not deem it necessary to refer to the controversies between the deceased and the defendant which took place long before the fatal shooting. These seemed to have been adjusted. They were evidently not regarded by the jury as constituting the provocation which resulted in the killing of the deceased. . The homicide occurred in a restaurant kept by one W. H. Rogers. The defendant was in Rogers’ employ as an assistant. He was, therefore, in his own place of business. Rogers was the principal witness for the prosecution, and he testified substantially as follows if reference to the provocation of the difficulty: Wyatt Williams, the deceased, came into the restaurant between 10 and 11 o’clock at night, with a companion, and called for a bottle of hop ale. W. R. Watkins, the defendant, sometimes called Bud Watkins, waited on them. Bud says: “Wyatt, you are a damn nice man, ain’t you? You talk one way to me, and some other way to other people. ” Wyatt says, “I don’t know, Bud.” But went on, and said, “You are a damn fine man (using a vulgar epithet). Wyatt said, “Yes, I guess I am,” and then Bud drew his pistol, and hit it on the bar. After a while — a moment or such a matter— he raised his pistol, and says to Williams, “You was the cause of my brother getting killed. ’ ’ Williams said he reckoned not. Just a moment after he raised his pistol and said: “You are the cause of my brother getting killed, ” and, with an oath, threw his gun down, and fired towards Williams. Witness then began to leave the room, and when near the door he looked back, and saw that Williams was “just sor1 of going after his gun,’’ going slow. He looked as if he had been hit. Heard two other shots, fired close together, but was out of the room at that time. Watkins was drinking that night. Joe Holmes, who was present at the shooting, was a witness for the prosecution, and testified to substantially the same facts as did the witness Rogers, J. C. Per-3ella, a witness for the prosecution, testified that he was on ihe platform at the door of the restaurant when the shooting Degan. He saw Watkins walk around behind the counter, vhen he struck his pistol on the counter and fired. Heard him say, “You have been the cause of my brother being killed, md, damn you, I will kill you, ” and then fired. Williams straightened up and made a step, and Watkins ran around n front, and fired the second shot, and then dodged out of he door. By that time Williams was in a kind of a falling josition, and when falling he fired his pistol. Did not see Yilliams draw his pistol. He did not have any at the time Yatkins fired the first shot. Did.not see him make any iffort to get any. Witness further testified that Williams aid to Watkins, “I am as good a friend as you have got.” ?. H. Davis, a witness for the prosecution, testified: “I fas present. I heard Watkins tell Williams he was the ause of his brother being killed. Williams said, “I reckon ot. ” In a few minutes after that I saw Watkins pull his un down on the counter, and in a few minutes after that re shooting took place. I saw Watkins shoot at Williams íe first time. I did not see Williams do anything at that me. I was not paying much attention then. When this appened, I went out the back way.” The foregoing is all istimony as to facts which transpired immediately preceding nd at the time of the homicide which was offered by the roseeution. The defendant then took the stand as a witness this own behalf. He testified, in substance, as follows: “I .ways thought Williams my friend, until I heard things all Le time about him. When he came into Rogers’ restaurant, e were eating tamales and drinking. I said to him: ‘Wyatt, ju always pretend to be a mighty good friend to my face; it when you are at my back you are talking about me all the time. ’ He says, ‘Bud, don’t abuse me that way. ’ ] think I had my pistol down under the counter,t or I had it on. He went down, j ust like he was going to pull his pistol out. I pulled mine up, this way, and he put his hand back. When I put mine back, he made for his, and it hung on his gallows. I jerked mine up.” Here witness was interrupted, because not understood. Witness continued: “At first he weni down, sort of, after his pistol. I had mine, and he seen 1 would beat him to it. He taken his hand away, and I pui mine back. Just as I put mine back — just as I put mine back, he made a grab for his, and it sort of hung on hie gallows. I jerked mine from under the counter. I wa¡ standing sort of behind. I jumped. I shot, and jumped on of the door, and shot again. He shot right after I shot the first shot. He was sort of coming up to me. I j umped out side the door and shot. He was coming towards me. Jus as Williams shot, I shot again. His shot and mine/ wen right together.” Defendant further testified that one Bridgemyer, almost two weeks before the shooting, toldhin that “Williams said to him if he ever got into a difficulty with me he would kill me.” Also that one G. C. Bontmel told him about three weeks before the tragedy that William; said to him if ‘ ‘I ever monkeyed with him, and give him ai opportunity, he would put the fixings on me; he would fi: me; kill me, I believe.” ’Bridgemyer and Bontmell, havin; been called as witnesses for the defendant, substantially con firmed these statements. John Jones, called as a witness b; defendant, testified that on the Tuesday before the killin; Williams said to him: “Watkins will be killed right wher he is, in the place of business he is in. He will be kille< there. Whoever kills him, there will be nothing said o done about it. The way he has been doing, if somebod; kills .him that will be the last of it.” He remarks: “Jus like Patton [his brother.] When Patton was killed, Jim an Bud forgot him in a few days. ” W. A. Watts testified on b« half of defendant that Williams told him about 10 days before the killing he expected to have a racket with Watkins Ln the future; he hoped nob; that he would never take as much off him in the future as he had heretofore; never would take that off him again. The conversations testified to by Jones and Bontmell were not communicated to the defendant prior to the homicide, so far as the record discloses. The defendant, on cross-examination, testified as follows: :‘ I thought this about Williams: He was always waiting for ;he advantage of a man. I always watched him. He was a nan I thought would kill a man if he got the drop on him. ! have watched him for two or three years. He throwed a ihotgun down on me one time, and started to kill me and ¡orne fellows.” Such is a brief summary of the evidence on his point.

Now, let us consider the instruction in question in iew of the foregoing testimony. ‘ ‘The jury are instructed, ” ays the court, “that a party cannot himself provoke a .ifficulty, and then slay his adversary upon the ground of elf-defense. So that, if you find, ’ ’ etc , that the defendant himself provoked the difficulty with the deceased, he could ot slay Wyatt Williams in self-defense, unless he himself, liter provoking the difficulty, withdrew from the same, in hich event his right of self-defense would revive.” It is ear from all the testimony in the case that the provocation i which the minds of the jury were directed by this instruc-on was the use of the words which the defendant uttered wards the deceased just before the homicide occurred, be defendant therefore must have provoked the difficulty, be jury could not find otherwise. But there is no evidence nding to show that “the defendant, after provoking the fficulty, withdrew from the same.” Hence, under this in-, ruction, the defendant’s plea of self-defense could not be nsidered by the jury. He had forfeited his right to defend himself, even if the deceased had attempted, as testified to by the defendant, to nse his pis'ol, after the defendant had put his own pistol away. No words, however aggravating, no libel, however scandalous, will authorize the suffering party to revenge himself by blows. No man can take vengeance into his own hands. He can use violence only in defense of his person. Com. vs Selfridge, Horrigan & T. Cas. Self-Def. 26. The Selfridge Case, just cited, is a leading authority on this subject. Selfridge provoked the difficulty by publishing in a Boston newspaper a card, over his own signature, denouncing the father of the deceased as ‘ ‘a coward, liar, and scoundrel. ’ ’ The son met Selfridge on the street, the day of the publication, and proceeded to castigate him with a cane. Selfridge immediately drew a pistol, anc shot his assailant dead. He was indicted for the crime o: manslaughter, and on trial before a jury was acquitted T he case was therefore not reported. But as it was triec before the Supreme Judicial Court of Massachusetts, and as the defendant was a prominent lawyer of the Bostoü bar, tin case attracted universal attention. .Theophilus Parsons, C J., delivered a special charge to the grand jury which in vestigated the case and found the indictment. The justice: of the court were Theodore Sedgwick, Samuel Sewell, anc Isaac-Parker. The case was tried in 18081 Parker, J., pre sided at the trial, and charged the jury. His charge in thi case is conceded to be one of the ablest interpretations o the law of self-defense which is found in our jurisprudence But more recent jurists have expounded the law of self-de fense even more liberally to the accused than did the learnec judge in the Selfridge Case. After Mr. Justice Parker ha severely condemned Selfridge for making the publicatio: indicated, and after commenting feelingly upon-the conduc of the son who thus sought to avenge an insult upon hi father, he admonished the jury that no person can resort t force to avenge an insult consisting of words, howeve opprobrious, or writings, however defamatory. Notwithstanding Self ridge provoked the difficulty by the scandalous publication indicated, yet the learned judge instructed the ury that, if the defendant did not purposely throw himself n the way of the attack, but was pursuing his lawful voca-¡ion, and that in fact he could not have saved himself other-vise than by the death of the assailant, then the killing was ixcusable, provided the circumstances of the attack would ustify a reasonable apprehension of the harm which he vould thus have a right to prevent. Com. vs Selfridge, Horrigan & T. Cas. Self-Def. 27. The jury, having been hus instructed, returned a verdict of not guilty. But sup->ose the jury in the Selfridge Case had been instructed, as ras the jury in the case at bar, '“that a party cannot himself rovoke a difficulty, and then slay his adversary upon the round of self-defense, ” what other verdict could the jury ave rendered in the Selfridge Case except a verdict of uilty? See State vs Kennedy, 20 Iowa 569; State vs Deckotts, 19 Iowa 447; State vs Benham, 23 Iowa 154; Adams vs People, supra. In the note to Stoffer’s Case, cited supra, the abhors sum up their review of the authorities upon this subset as follows: “It finally remains to consider of what egree of homicide a person'is guilty who provokes the com-it or produces the occasion in which he is forced to kill an-iher in his own defense. A full discussion of this question ight lead us into many nice distinctions, and take us be-end the reasonable limits of a note. We shall only advert i two leading distinctions: First. If he. provoked the >mbat or produced the occasion in order'lo have a ¡pretext >r killing his adversary, or doing him great.-bodily harm,” e killing Will be murder, no matter to what extremity he ay have been reduced in the combat. 1 Hawk. P. C. lurw. Ed.) p. 87, § 18; Id. p. 97, § 26; State vs Hill, 4 Dev. B. 491; Stewart vs State, 1 Ohio St. 66; Adams’ Case, ipra. Second, But if he provoked the combat or produc-ed the occasion without any felonious intent, intending, for instance, an ordinary battery merely, the final killing in self-defense will be manslaughter only. Adams’ Case, supra.” One other distinction might have been set forth, namely, that which occurred in the Selfridge Case. If the provocation was by mere words, without any hostile demonstration, and without malice, the final killing in self-defense will be neither murder nor manslaughter, but justifiable homicide. Those distinctions were not explained in the charge to the jury in the case at bar. They were all applicable, and it was error in the trial court to fail to state fully and correctly to the -jury the law upon this subject. As was stated by the Supreme Court of the United States in the case of Mills vs U. S.: “No portion of the charge of the court can be said to be harmless if it did not state correctly and fully the law applicable to the crime, even though it may be urged that in other portions of the charge the correct rule was laid down, -x- -x * When the life of the defendant is at stake, we feel that it is impossible to permit him to be executed in consequence of a conviction by a jury under a charge of the court which, we think, in some of its features, was clearly erroneous in law, because not full enough even though in some parts of the charge a more full and correct statement of the law was given. The opinion in the Mills Case was handed down January 4, 1897, and it is reported in 164 U. S. 644, 17 Sup. Ct. 210. Without intimating or expressing the slightest opinion as to the sufficiency of the testimony upon which the defendant in the case at bar based his right of self-defense, we are of the opinion that the facts which we have set forth in detail, in connection with others in the record, were such as to have entitled the accused to the consideration by the jury of the law upon which he rested his defense, and, consequently, that it was error in the court to fail to state the law fully and correctly on this subject at the time the instruction excepted to in the fourth assignment of error was given. Keener vs State, 18 Ga. 194. The instruction, as given, presented properly the contention of the prosecution; but it should have been qualified by stating the facts which would support that contention, and it should have been followed by other instructions presenting fully and correctly the theory upon which the defendant relied for his defense. A defendant in a criminal case has a right to have an instruction given based on his own testimony, although contradicted by the testimony of the prosecution. State vs Partlow (Mo. Sup.) 4 S. W. 14; Chambers vs People, 105 Ill. 409; Allison vs U. S., 160 U. S. 203, 16 Sup. Ct. 252. The jury were not bound to believe the testimony of the defendant. The court might with propriety have called their attention to this fact, and to the further fact that in determining what weight and credit they would give to his testimony they might take into consideration his circumstances, the great temptation which one so situated. was under to so speak as to procure an acquittal, but that they should weigh his testimony carefully, and pass upon it the same as upon all other testimony in the case.

Defendant-1 0redlbllIty-

The seventh and eighth assignments of error will be considered together. The defendant’s counsel asked the court to instruct the jury as follows: “The jury are instructed that, although the evidence may show preconceived malice on the part of the defendant, Bud Watkins, toward the decéased, Wyatt Williams, yet if the evidence further shows that fresh provocation occurred on the part of Wyatt Williams toward the said Bud Watkins between the preconceived malice and the death of the said Wyatt Williams, then the law will [not] presume that the killing was' upon the antecedent malice.” The word “not,” which we have inserted in brackets, was by inadvertence omitted. ‘ ‘The jury are instructed that, although the evidence may show that at some time previous to the killing of Wyatt Williams the defendant, Bud Watkins, had malice towards the deceased, yet if it further appears from the evidence that subsequently to such time the said malice on the part of the defendant was abandoned by him, and friendly relations between the deceased and the defendant, as far as defendant was concerned, were established, then the law will not presume that the killing of the deceased by the defendant was upon former malice, and the jury will in that event determine the guilt of the defendant without reference to such preconceived malice of the defendant.” The Supreme Court of North Carolina, in the case of State vs Hill, lays down the law correctly on this point. The court in that case held that, “when two persons have formerly fought on malice, and are apparently reconciled, and fight again on a fresh quarrel, it shall not be contended that they were moved by the old grudge, unless it so appear from the' circumstances of the affair.” 4 Dev. & B. 491; 1 Hawk. P. C. (Curw. Ed.) bk. 1, c. 13, § 30. It was not necessary to give both of these instructions. The giving of the latter would have been sufficient. It certainly stated the law correctly. But whether, in this case, it was reversible error to have refused it, it is not necessary to determine. The failure to give it did not, in all probability, prejudice the rights of the defendant, for the reason that vthe j ury must have reached the conclusion that all previous difficulties between the deceased and the defendant had been amicably settled long before the homicide occurred; and that antecedent malice, if any ever existed, did not enter into the transactions which resulted in the death of the deceased.

Instruction-Former malice. Former malice— Presumption Instruction refused. Not error.

The defendant’s counsel abandons his ninth, tenth and eleventh assignments of error. The twelfth assignment is ‘‘that the trial court erred in charging the jury that the punishment for manslaughter under the law of the United States was confinement in the penitentiary for a term of not more than three years and a fine of not more than one thousand dollars.” At the time of the trial in this case the counsel on both sides and the court were unaware that congress had recently amended the law as to manslaughter so as to read as follows: “That whoever shall hereafter be convicted of the crime of manslaughter in any court in the United States, in any state or territory, including the District of Columbia, shall be imprisoned not exceeding ten years, and fined not exceeding one thousand dollars.” 1 Supp. Rev. St. U. S., 85. Counsel for the government insists that, as the jury found the defendant guilty of murder, andas the instruction as to the punishment of manslaughter was given at the instance of the defendant’s counsel, the error did not prejudice his substantial rights, and that defendant could not now, in this court, for the first time complain of the error. Under the peculiar circumstances of this case, and in view of the fact that the jury evidently hesitated about returning a verdict of guilty by reason of the death penalty being the only punishment which could then be inflicted if a verdict of guilty of murder were returned, and by the further reason that the law as to manslaughter as given to the jury permitted imprisonment not exceeding three years and a fine of $1,000, which may have seemed inadequate punishment, in the light of all the evidence, we are inclined to the opinion that the giving of the law by the court without reference to the amendment, which was in force, and which permitted imprisonment for as much as ten years, was a substantial error, prejudicial to defendant’s rights, and which would of itself entitle him to a new trial. Who can say that, if the law as to the punishment of manslaughter had been correctly given to the jury, they might not have found the defendant guilty of manslaughter, and fixed his punishment at imprisonment in the penitentiary for a period of ten years? Whatever might have been the verdict if the law had been correctly stated, the defendant was entitled to the judgment of the jury under the law as it was. A note at the close of the case of State vs Scott, 4 Ired. 409, decided by the Supreme Court of North Carolina, states the law correctly, in our opinion: “It would be an inhuman rule of law that would require an ignorant defendant in a criminal case to suffer through the manifest mistake or omission of his counsel. Such a rule would be scarcely more tolerable than that which obtained until a recent period in England, which denied the prisoner the benefit of counsel altogether in capital cases, and compelled an illiterate prisoner to defend his own case, pitted against the highest legal skill the government could bring against him, except where points of law were debated.’’ Horrigan & T. Cas. Self. Def., 175. In the case at bar the error was not that of the counsel for the defendant alone, but equally the error of the government counsel and of the court. Since the case at bar was tried, congress has passed an act materially changing the punishment in capital cases. The jury may now,, if they find the defendant guilty of murder, add to their verdict the words, “without capital punishment”; and if such words are added the' punishment will be imprisonment for life. If a ' United States Court should, in trials of capital cases subsequent to the passage of this act fail to instruct the jury as to the punishment, and as to their right to reduce it from death to imprisonment for life, would not this be reversible error, even though the attorneys on both sides and the court were all ignorant of the new law? While the defendant in this case was not entitled to the benefit of the new law when previously tried, as the law had not then been passed, yet at a subsequent trial he will be entitled to the leniency which the new law may provide. This is not a reason for granting the defendant a new trial, but it is a fact that is worthy of consideration in resolving the doubts that arise in the case.

Instruction-Erroneous statement of law — Error.

The thirteenth assignment of error was based upon the following remarks made by the counsel for the government in Ms closing argument to the jury: “By your verdicts at this term of the court you have said that the slanderer must keep a civil tongue in his mouth; and here, in the Indian Territory, men’s property if safe from the clutches of the thief, and a woman’s reputation is safe from the poison of the slanderer.” We are of 'the opinion that the remarks complained of and to which exception was taken should have been withdrawn from the jury, yet we are further of the opinion that they did not influence.the minds of the jury in making up their verdict. Counsel, however, on the part of the people and on the part of the defendant also, should be careful in all cases to confine their remarks to the jury strictly to the facts and to the law of the case. It is unprofessional to go outside the record for the purpose of exciting sympathy or arousing prejudice in the minds of the jury; and whenever the privileges of counsel are abused, to the manifest prejudice of the accused, it would be reversible error not to withdraw the objectionable language from the consideration of the jury. Every person accused of crime is entitled to a fair and impartial trial upon the evidence in the- case and upon the law applicable thereto.

Remarks of Counsel-Harmless error.

The fourteenth and last assignment of error was that the trial court erred in stating to the jury, at the suggestion of the United States attorney, that the jury might recommend the defendant to the mercy of the court if they should return a verdict of guilty. The jury after having been out considering their verdict for several hours, returned into court and stated to the court that they had not agreed and could not agree. The jury asked the court on another occasion whether there was another penalty for murder than the death penalty. The court informed them that there was only one punishment for murder, but that, if they found the defendant guilty of murder, they might incorporate a recommendation for mercy. The jury were then conducted into their room, and in a short time thereafter they returned a verdict of guilty, with a recommendation for mercy. It was explained to the jury that the court had no power to extend c~emenoy, but it would be for the president of the United States to determine whether executive, clemency should be extended in the case. Counsel for defendant contend. that the verdict was not a fair expression of the opinion of the. jury; that they had refused to convict until the suggestion complained of was made by the trial court. These interviews with the jury took place in the absence of Mr. Furman, the leading counsel for the defense, but in the presence of Mr. Dick, his partner. Mr. Dick asked that Mr. Furman be sent for; that he would not agree to anything in his absence. But Mr. Furthan was not sent for, and no formal exceptions were taken by Mr. Dick to the suggestions made by the court to the jury in reference'to a recommendation for clemency. Under the circutnstances we are of the opinion that the defendant is entitled to the exception, and to have it considered by this court, But we are of the opinion that the defendant's rights were in no way prejudiced by the information given to the jury by the court, or by the suggestion as to a recommendation for clemency. The jurors were correctly informed as to the law-that there~ was but one punishment as the law then stood for murder, and that the jury might add a recommendation for clemency. The jurors well knew that such a recommendation would find its way to the proper authorities for consideration. It is no uncommon occurrence for juries to accompany their verdicts with a recommendation for clemency. Such recoin-mendations always have due consideration and the courts generally give them effect. In the case at bar the recoin-niendation would undoubtedly have been sent to the president of the United States. The counsel for the defendant himself would have seen to it that so important a matter in the interest of his client was brought to the president's at-bention. The suggestion of the court and the recommendation of the jury were both in the defendant’s'interest, and be cannot now be heard to complain of that which benefits dim rather than prejudices his right.

~. Statement b~ court-Not error.

As this is the first capital case which has been tried in the United States courts'in the Indian Territory, we have rery carefully considered all the errors assigned, even at the risk of being regarded as tedious. It is necessary, in entering upon this important jurisdiction, to carefully consider the law of every case, in order that no errors may be iommitted which will vex us and those who may come after is in the interpretation and enforcement of the law. For he reasons given in this opinion, we have reached the con • slusion that .there are errors disclosed by the record in this ¡ase which entitle the defendant to another trial. The ver-lict of the jury is therefore set aside, a new trial awarded, md the case remanded.