150 U.S. 442 (1893)
In the Circuit Court of the United States for the Western District of Arkansas, John Hicks, an Indian, was jointly indicted with Stand Rowe, also an Indian, for the murder of Andrew J. Colvard, a white man, by shooting him with a gun on the 13th of February, 1892.1 Rowe was killed by the officers in the attempt to arrest him, and Hicks was tried separately and found guilty in March, 1893.2
It appears that on the night of the 12th of February, 1892, there was a dance at the house of Jim Rowe, in the Cherokee Nation.3 Jim Rowe was a brother to Stand Rowe, who was indicted jointly with the defendant.4 A large number of men and women were in attendance.5 The dance continued until near sunrise the morning of the 13th.6 Stand Rowe and the defendant were engaged in what was called scouting, eluding the United States marshals who were in search of them with warrants for their arrest.7 They were armed for the purpose of resisting arrest.8 They appeared at the dance, each armed with a Winchester rifle.9 They were both Cherokee Indians.10
The deceased, Andrew J. Colvard, was a white man who had married a Cherokee woman.11 He had been engaged in the mercantile business in the Cherokee country until a few months before the homicide.12 He came to the dance on horseback on the evening of the 12th.13 A good deal of whiskey was drank during the night by the persons present.14 Colvard appears to have been drunk at some time during the night.15 Colvard spoke Cherokee fluently and appears to have been very friendly with Stand Rowe and the defendant Hicks.16
On the morning of the 13th, as the party were dispersing, Colvard invited Stand Rowe and Hicks to go home with him.17 He repeated frequently this invitation.18 Finally, he offered as an inducement to Stand Rowe, if he would accompany him home, to give him a suit of clothes, and a hat and boots.19 The urgency of these invitations appears to have excited the suspicion of the plaintiff in error.20 He declared openly that if Colvard persisted in his effort to take Stand Rowe away with him he would shoot him.21
Some time after sunrise on the morning of the 13th, about 7 o'clock, S.J. Christian, Benjamin F. Christian, Wm. J. Murphy, and Robert Murphy stood on the porch of the house of William J. Murphy.22 All had been at the dance the night before and had seen there Colvard, Stand Rowe, and the defendant.23 The porch was about 414 steps west from the house of Jim Rowe.24 They saw Stand Rowe coming on horseback in a moderate walk, with his Winchester rifle lying down in front of him, down a trail which led into the main travelled road.25 Before Stand Rowe appeared in sight the men who were on the porch had heard a whoop in the direction from which Stand Rowe came.26 This whoop was responded to by one from the main road in the direction of Jim Rowe's house.27 Stand Rowe halted within five or six feet of the main road.28 The men on the porch saw Mr. Colvard and the defendant Hicks riding together down the main road from the direction of Jim Rowe's house.29
As Colvard and Hicks approached the point where Stand Rowe was sitting on his horse, Stand Rowe rode out into the road and halted.30 Colvard then rode up to him in a lope or canter, leaving Hicks, the defendant, some 30 or 40 feet in his rear.31 The point where the three men were together on their horses was about 100 yards from where the four witnesses stood on the porch.32 The conversation between the three men on horseback was not fully heard by the four men on the porch.33 All that was heard was not understood because part of it was carried on in the Cherokee tongue.34 Some part of this conversation was distinctly heard and clearly understood by these witnesses.35 They saw Stand Rowe twice raise his rifle and aim it at Colvard, and twice he lowered it.36 They heard Colvard say, I am a friend to both of you.37 They saw and heard the defendant Hicks laugh aloud when Rowe directed his rifle toward Colvard.38 They saw Hicks take off his hat and hit his horse on the neck or shoulder with it.39 They heard Hicks say to Colvard, Take off your hat and die like a man.40 They saw Stand Rowe raise his rifle for the third time, point it at Colvard, fire it.41 They saw Colvard's horse wheel and run back in the direction of Jim Rowe's house, 115 or 116 steps.42 They saw Colvard fall from his horse.43 They went to where he was lying in the road and found him dead.44 They saw Stand Rowe and John Hicks ride off together after the shooting.45
Hicks testified in his own behalf, denying that he had encouraged Rowe to shoot Colvard, and alleging that he had endeavored to persuade Rowe not to shoot.46 Hicks further testified, and in this he was not contradicted, that he separated from Rowe a few minutes afterwards, on the first opportunity, and that he never afterwards had any intercourse with him, nor had he been in the company of Rowe for several weeks before the night of the fatal occurrence.47
Whether the trial court's jury instruction on aiding and abetting omitted any requirement that the defendant's words or acts be spoken or done with the intent to encourage the shooting?48
A defendant may be convicted as a principal in the second degree for aiding and abetting murder only when the prosecution proves that the defendant intentionally used words or acts to encourage the principal with the purpose of bringing about the criminal result.49 Mere words that happen to have an encouraging effect are insufficient without proof of the required mental state.50
Yes. The trial court's charge permitted the jury to convict Hicks upon a finding that his words produced an encouraging effect on Rowe regardless of whether Hicks spoke them with the intention to encourage the shooting.51 The established facts show that Hicks and Rowe attended the dance at Jim Rowe's house while scouting to avoid arrest, each carrying a Winchester rifle.52 Colvard, who had been drinking, repeatedly invited the pair to his home and offered Stand Rowe clothing as an inducement.53
Hicks voiced suspicion and stated he would shoot Colvard if the invitations continued.54 After sunrise the three men met on horseback near the Murphy porch.55 Witnesses heard Colvard declare he was a friend to both, saw Rowe twice raise and lower his rifle, and heard Hicks laugh on those occasions. Rowe fired the fatal shot immediately afterward.56
Hicks testified that he had tried to dissuade Rowe and that any remark was born of desperation because he feared Rowe might shoot either man.57 The instruction never directed the jury to determine whether Hicks uttered the disputed words with the purpose of spurring Rowe to fire.58 It therefore allowed conviction on the basis of the words' actual effect alone, even if Hicks intended only to calm the situation or to express fatalistic resignation.59
The omission of the intent element rendered the aiding-and-abetting instruction erroneous and requires reversal of the conviction.60
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Joined by Justice Brown
Justice Brewer dissented on the ground that the exception to the charge was a general objection to an entire page and therefore failed to bring any specific omission to the trial court's attention.61 He maintained that the words advise and abet themselves carry the implication of purposeful encouragement, so that ordinary jurors would understand the instruction to require intent.62 In his view the majority's reversal on an afterthought objection that was never presented below worked a substantial injustice to the government and violated settled rules governing bills of exceptions.63
Whether the trial court's jury instruction permitted conviction based on the defendant's presence at the scene for the purpose of aiding without evidence of any prior conspiracy or arrangement?64
Presence at the scene with a purpose to aid or abet does not support conviction when the defendant refrains from acting because assistance proves unnecessary, unless the evidence establishes a prior conspiracy or prearranged plan that makes the defendant liable for the completed crime regardless of his actual participation.65
Yes. The trial court instructed the jury that Hicks could be found guilty if he was present for the purpose of aiding Rowe even though he ultimately rendered no assistance because none was needed. The established facts contain no evidence of any antecedent agreement between Hicks and Rowe to kill Colvard.66 The encounter occurred spontaneously after the dance broke up, when Colvard approached Stand Rowe on the road and the three men conversed briefly.67
Witnesses heard no prior planning. Hicks testified without contradiction that he had not been in Rowe's company for several weeks before the dance and that he parted from Rowe minutes after the shooting. The instruction therefore allowed the jury to convict on a theory of constructive participation that the record did not support.68
Because the presence-for-purpose instruction lacked any factual predicate in a prior conspiracy, it constituted reversible error.69
Related opinions on this issue
Joined by Justice Brown
Justice Brewer contended that the majority improperly singled out one sentence from a general exception that covered an entire page of the charge.70 He noted that the objected-to language correctly stated the law in cases where a conspiracy is proved and argued that the trial court should have been given an opportunity to clarify or withdraw the sentence before the jury retired.71 In his judgment the court's willingness to entertain an unspecific exception undermined the orderly administration of justice.72
Whether the trial court's instructions on the weight to be given the defendant's testimony improperly assumed that witnesses contradicting him were telling the truth and unduly stressed his interest in the outcome?73
A trial judge may caution the jury to consider the defendant's interest in the outcome when weighing his testimony, but the instruction must not assume that prosecution witnesses are truthful or suggest that the defendant's interest alone renders his testimony unworthy of belief.74
Yes. The trial court's charge told the jury to weigh Hicks's testimony against that of other witnesses who are telling the truth and emphasized that his interest in the verdict was the greatest any person could have, thereby implying that his statements were likely to be false.75 The only substantial evidence against Hicks consisted of the porch witnesses' account of words spoken at a distance of at least one hundred yards.76 Hicks denied using the words and explained his conduct and departure with Rowe.77
The instruction therefore placed a thumb on the scale by presupposing the credibility of the contradicting witnesses and by inviting the jury to discount Hicks's testimony solely because of his status as the accused.78
The improper instruction on the defendant's credibility constituted an additional ground for reversal.79
Related opinions on this issue
Joined by Justice Brown
Justice Brewer maintained that a trial court is always entitled to call the jury's attention to a witness's interest, including the interest of the accused, and that doing so maintains balance between the government and the defendant.80 He rejected the majority's criticism of the definite article in the phrase the other witnesses who are telling the truth, arguing that no reasonable juror would have understood the instruction as a judicial declaration that the government's witnesses were truthful and the defendant was lying.81 In his view the instruction was a permissible and even necessary caution.82