Jack Spaniard, a Cherokee Indian, was tried in the spring of 1889 for the murder of Deputy Marshal William Erwin. This is one of the very first cases for which a type-written transcript exists. The 59 page transcript includes handwritten notes and corrections by the judge appear throughout. Spaniard was found guilty, and put to death on the gallows on August 30, 1889.
On the back of the final page is written a notice:
" The Reporter has made many mistakes in reporting this charge. I have corrected such of them as will enable the sum of the charge to be seen.
In the District Court of the United States, within and for the Western District of Arkansas.
February Term, 1889
April 12, 1889
Gentlemen of the Jury -- You are again called upon to solve one of these important problems involved in the charge contained in this indictment which is, that on the 13th day of April, 1886, this defendant together with Frank Palmer took the life of William M. Erwin, a white man and not an Indian, by shooting him to death with a pistol; that it is an act done in such a way and under such circumstances as to show it was done with malice-aforethought. The problem growing out of this charge to be solved by you in the light of the evidence and by the aid of the law given you by the court is the guilt or innocence of this defendant. He is the party on trial. The only way your duty can be performed under your oaths is by a correct solution of that problem as far as it lies in your power. When that has been done to that extent -- correctly solved in contemplation of the law -- the verdict is a just and proper one.
The first thing to find upon your part from this testimony is whether Erwin, the gentleman who was killed, was a white man. If the proof shows that this court has jurisdiction to try it.
In regard to the means that are alleged to have been used in this indictment, if the proof shows the use of a pistol or any kindred weapon, that is responsive to the allegation of the means named in the indictment as having been used to produce the result known as the death of Erwin. To a correct solution of the problem you must first find what is necessary to be established in the case, what elements, in other words, enter into this charge. When you have found that, when you have ascertained what the law requires, you then go to the testimony and find what the truth of the case is; then you make an application to the truth, of that principle of the law which is applicable.
Now, it is not deemed necessary by the court in this case to occupy your time for an unusually long period as the propositions are few and comparatively simple. Of course you know you can not find this defendant guilty of killing Erwin unless you first find Erwin is dead. That, then, is the first essential of this charge. It is the first cardinal proposition that must be established.
When we go along reciting these things that are necessary -- and when I am doing that I am doing just exactly as any of you gentlemen on the jury would do should you happen to be carpenters or mechanics when you wished to learn how somebody's house was constructed. The best way to teach an unsophisticated man how a frame house is built is to go and take the house apart and show him just exactly what it takes to make it. That is just what I am doing here. I am taking this charge in this indictment apart, and I am naming the timbers that are entered into the structure, that are required to enter into it by law; trying, of course, to simplify the propositions as much as possible, for I know you have enough responsibility, enough tax upon your minds to remember the facts in the case, and consider these different things that enter into this verdict although they maybe simplified as much as possible. To my conception that is the great reason why justice so often fails in courts, and juried either fail to agree or deliver wrong verdicts, because the court does not take sufficient pains to simplify these propositions so the jurors can understand them. There is no mystery about the law. It is as plain as the A.B.C's of the alphabet when it is properly explained, it is so simple, plain, just, and so wise in its purpose as to meet the admiration and commendation of every honest man. As you go along let your minds drift to the case that you may ascertain whether or not the testimony establishes either one of these propositions
Does the testimony prove beyond a reasonable doubt that Erwin is dead? If so put that aside as one of the propositions necessary to be established in the case.
The second propositions is, did he die by violence of the kind named in the indictment. Go to the testimony; nobody saw him die in that way. He was dead when they found him, according to the evidence. But you will find (as you already learned if you didn't know it before, and you did, I suppose) that all of these propositions that are essential to the case maybe established by one of either kinds of evidence. There are two kinds. There are two classifications of testimony in the law. One is known as positive evidence, and there is very little of that existing when you come to consider what it is. The other is what is called circumstantial testimony. We can not tell with absolute certainty when we see a man shot with a gun, although we may see him fall immediately after that, whether that shot killed him or not. We believe that it did and we say that it did, still there might be a rare exception; there might be a case where a man would die from the fright and the danger of the situation before the ball struck him. It would be a rarity of course, still it leaves the proposition not as one absolutely certain, but it is certain in the law when we see him fall and die, it is absolutely legally certain that that killed him. We don't always happen to see that, because men bent upon missions of crime, and especially high crimes affecting the life of his fellow man, and especially a high crime that not only robs an individual of his life but strikes a deathblow at the dignity and power of the law, that an officer of that law for the time being represents. I say when men enter upon missions of that kind they do not call in a jury of twelve honest, upright citizens to witness the performance and pass upon it from what they see; nor do they call in witnesses of a like character to see that it is done in a certain way in order that the case may be reproduced before a jury who did not see it. That is not done. It is nonsense to expect that. As a rule it is only these crimes which destroy human life and are the effects of a sudden passion that occur in the presence of individuals who are upright people. They take place a man, perhaps a good man ordinarily, permits his passion to govern him to such an extent as to prompt him to wipe out a real or imaginary wrong. But when he enters upon a mission of assassination, when he like the panther in the jungle, like the wild beast of the forest seeks to slip up on his victim in order to kill him unawares he does not call in witnesses to see it, and the only way we have of getting at the case to have it reproduced is by the things that are left around the occurrence. They are called circumstances. For example in this proposition that you must find whether or not Erwin died by violence of the kind named in the indictment; what evidence have you of it? Is there any proof here that he was found dead? If so were there any marks of violence upon his person? If so what was their character? Did they indicate he had been shot to death? Because that is the effect of this charge. It does not matter what he was shot with, whether it was a pistol or gun or weapon of like character. If he was shot to death the charge that he was killed by being shot by a pistol is satisfied. Have you any evidence of that fact? Was there a bullet hole found in his body? What would be your conclusion as reasonable men outside of the jurybox if you saw a man dead in the street, or roads or woods, or anywhere with that sort of evidence of violence upon his person? Whatever you would do, whatever conclusion you would come to in a case like that as a reasonable citizen you have a right to come to from the same facts, from the same testimony in the jurybox. Now then, does the proof show it? If so you are authorized to put aside that proposition as established beyond a reasonable doubt, that he died from the effect of a pistol or gunshot wound made upon his person, the shot penetrating his person.
The second proposition to be established by you is, was the violence so inflicted that it was a crime. This proposition involves the consideration of what is in this charge, it is charged to be murder. We must go to the law right here and see what murder is, because we can not find it anywhere else. We all have a general idea of what it is, and we are generally correct about it. You may place a given set of facts, if they are enormous and wicked facts, before any honest mind in the country, a mind that never heard a principle of law enunciated, and that mind will instinctively in the face of such facts come to the conclusion that the case is murder. For example you may show to any mind that Erwin was killed wickedly and wantonly, without any cause, without an offer upon his part of any legal provocation, and that mind will say, that is murder, instinctively say it. But we can not go to persons or to their opinions to ascertain what the crime of murder is. The purpose of the law as you know is protection and security to society so that every man who is innocent, every human-being who has not forfeited his life shall be protected in its enjoyment, shall be made secure in the enjoyment of that inestimable boon. We do not, in the hurry of this life, stop to contemplate -- I was going to say the mighty effect, which depends upon the recognition of this principle of the law in which is wrapped up and upon which depends the safety of society. Did you ever lay down at night and close your eyes with the contemplation that there was nothing but the thin pane of glass between you and a wicked bloody minded man on the outside who might have some trivial and insignificant motive to take your life? Did you ever contemplate that it is not in the power of man when he goes to rest at night to bar his door or close his window so as to keep out the bloody-minded man who might desire to assassinate him? You can not do it, and yet the whole civilized world, millions of upright people go to bed at night and are soon wrapped in slumber with the assurance that there is surrounding them the mighty power that restrains the arm and keeps in check the assassin who might seek to ply his bloody work upon the family or upon the household of the citizen. What is that power? It is the law of the land. Yet when we come to enforce it, when we seek that for the people which is necessary to be done to secure that state of existence it requires courage, it requires firmness, it requires discretion, it requires the highest sense of justice we know. Wrong may be done, because in every case where the law is sought to be enforced a great civic battle is fought; if it be a case where the man charged is guilty of the crime that civic battle is one waged between the man of crime and the one who seeks in the interest of the people to fully and completely assert that great power of the law which secures their protection. Now in order to assert that, in order that it may be fully asserted and completely thrown around the people as a protecting power the great principle which underlies this power of the law is the fact that it is a certainty. If it was an uncertainty it would fail of its purpose from its very uncertainty. It must be certain. That it maybe certain we must ascertain how it defines these crimes. It does define them, everyone of them. There is no crime that can be considered as such unless the law defines it. The law defines this one, and it says: "The killing of every human-being in such a way and under such circumstances as to show that it was done willfully and with malice-aforethought, is murder." It is a high crime known to the law as murder, a crime that strikes at the very vitals of society, strikes at its very existence. It takes away one of the props, and supports; one of the component elements which enters into and composes society, because it is made up of each member. It does not stop by simply saying that willful killing and the killing with malice-aforethought of a human-being is murder, but it defines these terms, it states what is meant by willful as used in this connection. It says that a willful killing is an intentional killing. Every killing that is done intentionally is done willfully, because willful as used in this connection means intentional and not accidental.
Let us see what is meant by accidental killing that we may understand that. If this word killed means intentional and not accidental it means every killing that is not accidental. That is exactly what it means. The word willful has a broader meaning in the law than the meaning that is attached to it ordinarily. What is an accidental killing? In this connection it may be remarked that the law enjoins upon us certain great duties, the highest and greatest of which is that upon which depends the protection of human life. All duties are correlative to the rights we possess. I have a right; I do not have it alone. Every man has it until he forfeits that right. We all stand precisely upon the same plane. We are equal before this law we are seeking to administer. Now then, the law requires of us certain great duties in order that life may be protected. If a man causes human life to be destroyed without observing that care exacted of him by the law he is guilty of a negligent act of such a character as to make it a crime, but if he does observe the duty that the law requires of him and human-life is taken notwithstanding, he is without fault; he is without blame; it is no crime; it is an accidental killing: it is what the law calls a misadventure. The law exacts of him, when we come to talk about that which may affect human-life, the highest possible care that a human-life may not be destroyed. When he does not exert that very highest possible care and death ensues because he did not exert it there arises a state of case which is known to the law as one that has intent connected with it -- legal intent, growing out of the conduct of the party.
Men take human lives in a state of case like I have enumerated, when it is taken carelessly, or they may take them when there is a specific intent to do the act which is known to the party who does it which would naturally or reasonably or probably result in death. Such is an act where a man presents a gun or pistol at another within shooting distance and fires it. The man who does that knows that that acts will ordinarily or reasonably or probably take that man's life, and because he knows that, because he does an act of that kind, and because an act of that kind is one which may destroy life, the law says that from the doing of that act he is held to have done an intentional act, and consequently a willful act, and more than that, because the result is one which usually and probably follows the act he is held to have intended that result. The connection between the act and the result is a usual connection. It is one which by the observation of men may naturally or reasonably or usually occur. The party who does the act knows that also, and when he does an act of that kind he is held to have intended the reasonable and natural and probable consequences of it. It is not only willful as an act but he has produced a result that is a natural result and a willful result. That is upon the principal that every man by the law is held to have intended the necessary, natural and probable results of his act. When I do an act if it, from its nature and the way in which I do it, will probably produce a certain result that result is my result intentionally produced by me, and consequently willfully produced. Now, you take the case that I have put, where a gun is fired at another within shooting distance of him; you are required when a party is put on trial for doing that, and death has ensued, to find that he intended to produce that result, that is to say, there was upon his part a legal intent to produce a result of that character. Let us see what the law says about this matter of intent, about this thing of men doing an act of a certain character, whether we can take that act as done in that way if we find it was done willfully, and we must find it in the case I have put. Take the case where a man is shot say with a gun or a pistol by that gun or pistol being presented at his body. The gun is a mere automatom; it has no will-power; it can not move itself; it can not put itself in the position where the muzzle points toward the victim; it can not pull its own trigger. It is constructed so that the agency that grows out of man's conduct, or his acts, or his will power must operate this automatom, this inanimate cause of death. When we see a gun presented at another we know that gun is not operating itself, and when we hear the report we know it was not fired off of its own volition, of its own will-power because it has none. It is simply an agency when acting under the control of man that will produce certain terrible results. We know that. Therefore when we see a case of that kind occur we naturally conclude that there is will-power behind it, and we find from that state of facts an intentional shooting, and then apply this principle, that every man on earth living in society is held to have intended the natural and probable consequences of his act, or natural and probable result of his act. It is a maxim older than the law of England that: "A man is not guilty unless his mind is guilty." Where he fails to observe the duties enjoined upon him by the law in every case of his mental guilt, whether it grows out of a specific purpose, or whether it grows out of an act of negligence it is wantonly and wickedly done.
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If that state of facts has been produced here whether in a positive character in the shape of a man who says he saw the shooting occur, saw it transpire, or if that does not exist you are not to stop in your inquiries because of a failure of that sort of evidence. If the dead body of Erwin was found; if it had a hole through it we ordinarily as reasonable men would come to the natural and probable conclusion that he was shot to death by a gun or pistol, or some like weapon. If you have not positive evidence alone but you find it in the shape of circumstances alone, as you must find it in the great mass of cases here as you have learned this term, you have evidence in the absence of anything explaining that act -- you have evidence that is sufficiently cogent in its nature, sufficiently probative in its character to authorize you to believe that he was willfully killed, that the killing was willfully done.
You will observe presently when we come to define this other element of the crime of murder that it is absolutely necessary that you should understand correctly and absolutely this word willful because it sometimes cuts a very important figure by the way of showing whether or not an act was done with malice-aforethought. What is this element of murder known as malice-aforethought. It is the taking of human-life in such a way and under such circumstances as to show that it was done by a party who had a heart void of social duty and a mind fatally bent upon mischief. When a man does a wicked and cruel and wanton act without just cause or excuse or in the absence of palliating circumstances, that is, circumstances that reduce the grade of that act to one of less character in its criminal nature, in the absence of this fact or that which justifies you have a state of case which shows from the very act done, the very way in which it is done, the very result produced a heart void of judicial duty -- you have an act which shows it was done by a mind fatally bent upon mischief. The mischief was, a human-life has gone out, a good citizen has lost his life, and in a case of that kind you find one of the elements of this thing known as malice-aforethought, a mind fatally bent upon mischief. What is meant by the other element? I don't think you can understand what is meant by malice-aforethought from this general definition I have given you, but when we come to define the other ingredient that enters into it, that is, that the act was done by a man void of this high social duty that rests upon every citizen, not to destroy life, but to protect it. That is the highest duty that rests upon every one of us, and when we are performing these terrible duties here -- duties I have remarked that require sagacity and discretion and a high sense of justice, and above all the very highest courage possible; courage, I say, in my judgment, greater than that which would carry a man to the cannon's mouth upon the battle-field, because when he is performing these duties he is sitting in the whitelight of criticism. He is confronted by those who may sympathize with crime and who may desire to aid it. He meets that criticism, harsh and brutal criticism; and of these sentimental fools who, as a consequence of their sentimentality, always sympathize with crime and seek to paralyze the law when punishment is likely to overtake the criminal. He has to confront that class of people; then he has to confront another class, another honest and just class, who are friends of the law, just in the conception of their purpose but frequently from a misconception of the case and a wrong opinion consequently harshly and unjustly criticize courts of justice and officers of the law who represent for the time being that power and dignity necessary for the security of us all.
The law requires of every citizen an observance of this high social duty to protect human-life. When we forget it, when we disregard it, when we do not recognize it, when we fail to carry it out by doing everything in our power to protect the life of the innocent and those who are entitled to protection under the law, why we are disregarding this high social duty, and we evidently possess a heart void of it, whether we do that act through special spite or grudge or ill-will, or to accomplish some specific design, or whether it is done, as it is frequently, from gross negligence, from gross recklessness, from a malignant desire to carry out some purpose that would subserve some purpose to liberate a friend, or something of that kind; if we do it for any of these reasons and do it when the party against whom we do it has offered no such provocation that the law will regard as sufficient, we do an act which shows we have a heart void of social duty, we do an act that the law says may grow either out of special spite or grudge or ill-will or general malevolence, and in either case it is murder; in either case it evidences an existence of this trait of the crime of murder known as malice-aforethought. Under the law of the United States it embraces every killing that is not justifiable -- and there is no justification offered in this case for this act, and there is no evidence of the kind offered in this case to show mitigation, either mitigation or justification. If this be a case where the evidence shows either positively or circumstantially in its character that Erwin was found dead with a bullet hole through his body, you have a case that is murder, and I will tell you why. It used to be regarded as a settled principle of the law that the proof of the killing established murder; practically that is correct yet, because the proof of the killing always either shows the means used to produce that result, as in this case the proof offered here shows the death of Erwin, shows a bullet hole through his body, therefore it shows the means in this case, and it always either shows the means used -- the very proof that is offered to show the killing either shows the means used or it shows the adoption of some method to obliterate the evidence of the crime. This is sufficiently conclusive in its character of a preconceived design to do an act as to evidence the existence of malice. Take the case where Webster killed Parkman. That is referred to as a prominent case. On the trial of that case there was no evidence that could be offered to shows the means used by Webster to kill Doctor Parkman because he had taken his body and consumed it in the laboratory of the college. It was all consumed, all except a few small pieces of bone and a block of mineral teeth, and the jury could not arrive at the means used, the evidence was not there; but what existed as coupled with the proof of the killing in lieu of the use of these means by the proof that the body was concealed. The fact that the evidences of the death of Parkman were obliterated -- and in that case evidence was given to the jury of forged letters proven to have been forged by Webster to show that Parkman was seen living on the streets of Boston after he was proven to have been killed -- the forgery of testimony and the concealment of the remains, the obliteration of all the evidence that he had dies by violence were facts that were concomitant with or connected with the killing itself, the proof of the killing, and in that case the proof of the killing showed this fact of concealment or it showed that which evidenced an existence of a preconceived design to kill, as it does in very case, and practically speaking the proposition is a correct one; to say that proof of the killing in the absence of anything else that explains it, when there is no evidence that goes to explain that act, to show that it was one that could be done under the law, the proof of the killing alone is sufficient to show murder, because it either, as I repeat, shows the means used or the obliteration of the evidences of the crime, and acting upon the principle that a man does not obliterate evidence of an act of that character unless there is a consciousness of guilt that prompts the obliteration of it. That is the general rule. It would be more correct to say, it is more explanatory in its nature, it is more satisfactory in its character to say to the jury that the proof of the killing and the means used are sufficient to show the crime of murder, in the absence of anything that justifies or mitigates it.
A while ago I called your attention to the definition and illustration of the meaning of this word willful, and I reminded you that when you come to consider the meaning of this phrase, willful might cut a very important figure in that definition. I say to you that where the proof shows a willful killing by gun-shot or pistol shot, or the using of a kindred weapon such as is charged in the indictment, and there is no evidence going to justify that killing, or to reduce it to manslaughter, that that is murder, and when we have that evidence, and when we have that proof of such a killing it is not necessary for us to stop and inquire into the motive of it. It is not necessary to hunt up the motive because motive for a crime is no essential part of that crime. Motive may exist in an hundred forms; it may be of the most trivial and insignificant character. No good man, no righteous minded man would wantonly and wickedly and without just cause or lawful provocation take the life of any man. The mind of such a man as that is not the mind that goes to hunt through the actions of men to ascertain a motive for the act because the possessor of such a mind knows that a bad and wicked mind would prompt the doing of an act when the motive is trivial, so insignificant that it is frequently overlooked by the good citizen, by the righteous, upright man, but to find this crime we do no have to find motive; that is not an essential part of the crime; it is only an evidence of it, and I repeat it may exist in an hundred forms. It maybe a desire for revenge, it maybe for the purpose of robbery, it may grow out of jealousy, it maybe a desire to liberate ones-self or an other from the power of the law as represented by an officer having him in charge; that maybe the motive. That motive would not be adequate in the estimation of any proper thinking man to take the life of that officer, and when a man does take the life of such an officer in such a way and for such a reason and from the fact that he takes it under such circumstances and for such a purpose evidences the fact that he has a heart void of social duty and a mind fatally bent upon mischief and is consequently guilty of murder.
We need not go to any other field, to any other country to ascertain the comparative motivelessness of acts than this field of blood over here, this land where human-life is so cheap, where, from the records of this court, men have been killed for the most trivial motive, for the purpose of obtaining things of the most insignificant value for the purpose of overpowering officers of the law under circumstances where those who took their lives could not expect at most but the most trivial punishment for the act of which they were charged. We find these facts as matters of common knowledge, and therefore it is a matter that the court has a right to remind the jury of as a thing of which it takes judicial notice, existing here, and to some extent everywhere, that this crime called murder, this crime that deprives society of its members wickedly and wantonly and ruthlessly is committed for the most trivial considerations.
Now that is the principle of the law in regard to murder. Now a word further as to what the law regards as those elements of crime known as malice aforethought.
It presumes it from the nature of the act; if it is an act having a character that implies deliberation. A man prepares poison to administer to another man; he deliberates over it. What is the use of hunting for motive in the face of such evidence as that from his act. Take the case where it is proven to have been done by a particular party, isn't there evidence of deliberation, of a preconceived design to do an act that may probably or naturally or reasonably result in death? In this case it is not a case where death was produced by poison, but if the parties followed Erwin, who was proven in this case to have been an officers, representing the power and dignity of this Government of the United States, having in his hands great official powers to be executed for the benefit and protection of the people of that country and the whole country; and if the parties followed Erwin for the purpose of either rescuing the prisoner or for the purpose as a primary consideration of taking his life or doing him great violence, the fact of pursuit, the fact they followed him shows a deliberately formed design to take his life or do an act which might result in his death as strongly, as conclusively and as satisfactorily as in a case where the proof would show a man procured and administered poison to another. There is evidence of a preconceived desig