503

sailed from Boston on the 20th of June?" He answered: "No; I don't know anything about that."

Counsel now contends that defendant moved to strike out the testimony as to what was customary, but the record contains no such motion; and we think the reference must be to the motion above mentioned, which was properly disposed of.

4. John Lind had testified on cross-examination that Andersen asked the mate, "Won't you protect me until we get to port?" and that the mate said: ""Get to port! You will get killed anyhow,' or something like that." The question was then put: "How came he to ask the mate to protect him?" He answered: "The captain was cussing and treating him badly." Objection was made by the district attorney on the ground that counsel had no right to go into any "altercation between the accused and the captain, but counsel for the accused insisted that he might "ask what took place between the captain and Andersen that morning, whether the mate was present or not, and let the jury infer whether Andersen was alluding to that when he asked the mate for protection." The court ruled: "You may ask it. We want all the facts in the case, and, if it is not relevant testimony, it will be excluded." The witness thereupon gave an account of the quarrel about the captain's dog. He was then asked: "Do you know of any other circumstances? Had this captain been brutal or inhuman to this cook in any other way?" This question was objected to on the ground "that the character of the captain, and his treatment of the accused prior to this time, was not an issue in this case, which was a trial for the killing of the mate, and was not a part of the res gestæ of this case." After argument, the court sustained the objection and excluded the question, and exception was taken. Counsel for plaintiff in error immediately remarked, "I mean by the interrogatories I am going to propound now to confine myself to that morning," and continued the cross-examination. record makes it plain that all evidence offered as to what occurred that morning was admitted, and that what was excluded in this instance was evidence of the conduct of the captain prior to the day the mate was killed. And there was nothing to indicate that that antecedent conduct of the captain was so connected with the killing of the mate as to form part of the res gestæ, or that it could have any legitimate tendency to justify, excuse, or mitigate the crime for the commission of which Andersen was on trial.

The

5. After the government had closed its case in chief, defendant's counsel moved that a verdict of not guilty be directed, because the indictment charged that the mate met his death by drowning, whereas the proof showed that his death resulted from

the pistol shots. There was no error in de nying this motion.

We repeat that the indictment charged the death to have resulted from shooting and drowning, and that the fact was uncontroverted that the mate was shot, and immediately thrown into the sea. There was no examination to ascertain whether he was then dead or not. He was lying face down, and was picked up and thrown overboard as ordered by the accused, according to the testimony for the government. Lind and March believed he was dead, Horsburgh said he appeared so, Barstad was doubtful, and Barrial testified he told the cook he was alive.

So far as this motion was concerned, it was enough that the evidence was not conclusive that he was killed by the pistol shots.

And, as already indicated, the government was not required to make the charge in the alternative, and elect to proceed in respect of one means of death rather than the other, where the murderous action was continuous.

6. Several of the errors assigned related to the rulings of the court limiting the testimony to the transactions on the day of the homicide. These rulings were made on certain questions propounded to the accused. His counsel asked: "Now, I want to ask this question to the witness: I want you to detail, with truth, to the jury, everything that occurred in reference to this business from the time you shipped, on the 16th day of June, until you left the vessel, on the 6th day of August?"

This was objected to, and after argument the court, through Goff, circuit judge, ruled as follows: "I have no objection to your having the accused commence in his own way, and detail as to him is best, confining himself to the truth, just what took place there on the morning of that day, and without any assistance from you; but I cannot permit him to detail to the jury the incidents of the voyage from the time they left Boston in June, as I understand your question to indicate." Exception was taken. Counsel then proceeded: "Q. Did you ship on the Olive Pecker? A. Yes, sir. Q. Did you have trouble with the captain?"

This was objected to, and the court said: "I must say, Mr. McIntosh, that I fail to see the pertinency of testimony as to a quarrel with the captain in Jure or in July. Suppose the mate was a party; the charge is that of killing Saunders in* August, and the testimony is confined to that time. You can show, if you can, what was the feeling between the accused and the mate, and that it was such growing out of previous quarrels or threats by the mate to take the life of the accused, or anything in that line which would tend to explain the standing of the parties at the time of this occurrence. Now, anything that bears upon what had

taken place, so far as the mate is concerned, can go before this jury." Exception was taken.

Counsel continued: "Q. You shipped on board the Olive Pecker some time in June, 1897? A. Yes, sir. Q. Now, state to the jury all that occurred between you and the mate during that time, including all the facts and circumstances attending the 6th of August?"

All that part of the question intended to elicit what occurred between the mate and the cook from the time they left Boston was objected to.

The court said: "The trouble, Mr. McIntosh, is this: In the present condition of the testimony of this witness, it is hard to see the pertinency of it now, but I do not say that it may not be pertinent. You had better first let the witness detail the transactions of the 6th of August, and if anything is developed thereby which makes it pertinent to bring in previous incidents, as tending to explain what took place on the 6th, it can come in." Exception was taken.

The accused was then asked: "Detail to the court and jury all the occurrences which took place on the morning of the 6th of August, 1897." Thereupon the accused gave his account of the transactions of that date, the trip to shore, and the subsequent arrest. After he had concluded, his counsel put this question: "Now, state what trouble, if any, you had had with this mate previous to this occasion." The question was objected to on the ground that the testimony of the witness should be confined to what occurred on the day of the homicide. After argument, Goff, J., delivered this opinion:

"The reason I suggested to counsel for the accused that the statement as to the occurrences relating to the killing of the mate should be stated as they took place on that day was that the testimony might be confined to a certain limit. Now, there is no doubt in the world that a party may protect his own life against the party assailing him. If he believes that he is about to suffer harm from one who has attacked, if he bases that belief upon a previous threat, if he bases that upon previous personal encounters, if he bases that upon the known brutal character of the party, the law, out of tender consideration for the frailties of human nature, will permit him to act upon that belief and upon that understanding. But can we apply that in this case? Now, we must look at the matter as it is before the jury, as it is presented by this witness. The witness states that he had a controversy with the captain; that the captain was cruel to him; then, in that hour, he turned to the mate and advised with the mate; he asked the protection of the mate. His conduct, at least, does not indicate that there was any feeling between him and the mate at that time. If the testimony is admissible, it is upon the theory

that it must tend to explain the situation as it then existed. He had turned to the mate to ask his protection from the captain. Now, if the mate had attacked him, it would be perfectly competent for Andersen to show that the mate, previous to this day, had threatened him, or had been cruel to him. We must look at the testimony as the witness has given it himself. It was the witness who sought the mate, and not the mate who sought the witness. I fail to see how a party can, under those circumstances, show, either by himself or by another, that he had had a controversy with the party he is about to attack, the day before or the week before, if he has had time to cool. If there had been a controversy of that kind, even under any circumstances of that kind, it does not authorize the party to take the law into his own hands. I must exclude the testimony, and adhere to the intimation I gave some time ago, on another ruling, with reference to threats."

To this ruling exception was taken. Counsel then said:

"Now, in order that this matter may go down right, and in order that I may save the point, but without any disrespect to the court, I want to propound this question to the wit

ness.

*"Q. I don't want you to answer this, Andersen, until the court passes upon it. I want it to go down in the record. I want to ask you whether on the day before you had had a difficulty with the mate, and, without provocation on your part, the mate had not attempted to throw you overboard?

"Mr. McIntosh: I understand that your honor rules that I cannot ask that?

"The Court: The question is improper, and cannot be answered."

And to this, exception was taken.

The preliminary rulings of the court, which required the incidents of August 6th to be given at the outset, are not open to criticism. The point to be considered is whether evidence of transactions previous to that day was admissible, in the light of the testimony of the accused in respect of what passed on that day. It will be perceived that no specific offer of proof was made. But, assuming that counsel had offered to show by the accused that he had had trouble with the mate previously to August 6th, and that the day before he had had a difficulty with him, and the mate, without provocation, had attempted to throw the accused overboard, would such testimony by the accused have been admissible, in view of his own detailed account of the homicide and its surrounding circumstances? On what legal principle could it have been held to have a tendency in justification, excuse, or mitigation?

Andersen's story was: That on the morning of August 6th he had a difficulty with the captain about the dog. That the captain cursed him, struck him, and sent him on top the red-hot stove and the pots and pans. That

he subsequently appealed to the mate for protection, and he treated the application with scorn and profanity. That some time afterwards he went to the cabin, to sweep it, and that the captain glared at him and cursed him. He commenced sweeping the cabin, and started into the mate's room first. Saw the mate's gun lying on the shelf, and took it down; thinking that, if the worst came to the worst, he would have to defend himself. He finished the cabin, and started into the captain's room. The captain arose, and was about to assault him with a bottle, and he shot him. "Then I thought about the mate. I ran into the captain's room then, and got his two guns." He ran up on deck. Asked Lind where the mate was. Was told he was aloft. Looked up and saw him there, and called him down, or waited for him. As the mate came down, he asked Andersen where he got the guns, and where the captain was; but Andersen made no answer to this, and stayed on top of the forecastle house. Then, as he stood on the house with the pistols, and the mate was three feet below, on the forecastle head, but coming towards witness as if "to take the marline spike off his neck and shove the marline spike into me," witness' pulled his gun and shot him. He shot him several times.-the mate begging him not to shoot. Immediately after that he called up the sailors, and the body was thrown overboard.

It is true that a homicide committed in actual defense of life or limb is excusable, if it appear that the slayer was acting under a reasonable belief that he was in imminent danger of death or great bodily harm from the deceased, and that his act in causing death was necessary in order to avoid the death or great bodily harm which was apparently imminent. But where there is manifestly no adequate or reasonable ground for such belief, or the slayer brings on the difficulty for the purpose of killing the deceased, or violation of law on his part is the reason of his expectation of an attack, the plea of self-defense cannot avail. Wallace v. U. S.. 162 U. S. 466, 16 Sup. Ct. 859; Allen v. U. S., 164 U. S. 492, 17 Sup. Ct. 154; Addington v. U. S., 165 U. S. 184, 17 Sup. Ct. 288.

According to his own statement, Andersen, after he had shot the captain, thought about the mate. armed himself with the captain's pistols, went in search of his victim, and finding him aloft on the mainmast, at work, called him down, or, seeing him coming down, awaited him, and shot him. He was not only the aggressor, but the premeditated ag gressor. The captain being dead, he knew the mate would assume command, and that it would be his duty to arrest him and take him ashore for trial. The imminent danger which threatened him was the danger of the gallows. The inference is irresistible that to avert that danger he killed the mate, cast the bodies into the sea, burned the ship, and took to the open boat. There can be no pretense

that he was acting under a reasonable belief that he was in imminent danger of death or great bodily harm at the hands of the mate. He testified, to be sure, that when he had armed himself, gone in search of the mate, and stood on the forecastle house ready to receive him, he thought the mate was going to use against him the marline spike which he had been using at his work in the rigging. and to protect himself against that marline spike, swung around the neck of a man standing three feet below him, the accused shot him down while he was asking for his life. It was, indeed, the duty of the mate to attack Andersen as he stood there with three pistols, fresh from the slaughter of the captain, and in open mutiny. But, as the accused told his story, he was not repelling violence; and, if the mate attempted to make use of the marline spike, it was simply in self-defense.

The case, as Andersen's testimony made it, afforded no basis for the Introduction of evidence of prior provocation, or even of injuries previously inflicted, for no overt act on the mate's part provoked the evil intent with which Andersen sought him out on this occasion. Such evidence would not have been relevant, in view of the circumstances, as tending either to make out self-defense, or to reduce the grade of the crime.

We are not insensible to the suggestion that persons confined to the narrow limits of a small vessel, alone upon the sea, are placed in a situation where brutal conduct on the part of their superiors, from which there is then no possible escape, may possess special circumstances of aggravation. But that does not furnish ground for the particular sufferer from such conduct to take the law into his own hands, nor for the suspension of those general rules intended for the protection of all alike, on land or sea.

7. Complaint is made because the court refused to allow a witness to testify as to the general reputation of the captain. If there had been any adequate basis for the contention that Andersen killed the mate in selfdefense, by reason of a reasonable belief in imminent danger from him, evidence of his, character for ferocity, brutality, and vindictiveness might have been admissible. Smith v. U. S. 161 U. S. 85, 16 Sup. Ct. 483. But, as the record stood, the character of the captain could have no legal bearing on the issue of the guilt of the accused of the murder of the mate.

8. Various instructions were asked on behalf of the defendant, as well as on behalf of the government, which were, respectively, refused by the court, except so far as included in the instructions given. But the only ruling in this regard pressed on our attention is the alleged error of the court in instructing the Jury as follows: "The other felonious homiIcide to which I called your attention (manslaughter) is the unlawful killing of a human being without malice, either express or implied. I find it to be my duty, gentlemen

of the jury, to say to you that if the defendant has committed a felonious homicide, of which you are the only judges, there is nothing before you that reduces it below the grade of murder."

This instruction was similar to that given by Mr. Justice McKenna, then circuit judge, which was reviewed and approved in Sparf v. U. S., 156 U. S. 51, 63, 15 Sup. Ct. 273. That case is decisive of this, for the evidence disclosed no ground whatever upon which the jury could properly have reached the conclusion that the defendant was only guilty of an offense included in the one charged, or of a mere attempt to commit the offense charged. The testimony of the accused did not develop the existence of any facts which operated in law to reduce the crime from murder to manslaughter.

The law in recognition of the frailty of human nature, regards a homicide committed under the influence of sudden passion, or in hot blood, produced by adequate cause, and before a reasonable time has elapsed for the blood to cool, as an offense of a less heinous character than murder. But if there be sufficient time for the passions to subside, and shaken reason to resume its sway, no such distinction can be entertained. And, if the circumstances show a killing "with deliberate mind and formed design,"-with comprehension of the act, and determination to perform it, the elements of self-defense being wanting, -the act is murder. Nor is the presumption of malice negatived by previous provocation: having no causal connection with the murderous act, or separated from it by such an interval of time as gives reasonable opportunity for the access of fury to moderate. Kerr, Hom. 68 et seq.; 2 Bish. New Cr. Law, § 673 et seq.; Whart. Cr. Law, § 455 et seq., and cases cited.

There is nothing in Stevenson's Case, 162 U. S. 313, 16 Sup. Ct. 839, to the contrary. The doctrine of Sparf's Case is there reaffirmed.-that "the jury would not be justified in finding a verdict of manslaughter if there were no evidence upon which to base such a finding, and in that event the court would have the right to instruct the jury to that effect."

No other error assigned requires notice.
Judgment affirmed.

Mr. Justice MCKENNA dissented

NOTE

The following is the evidence referred to in che statement:

Barstad, who was at the wheel when the mate was shot, testified:

"I last saw William Saunders, the mate of the said vessel, alive on the morning of August 6, 1897, on the left side of the forecastle head of that vessel. It was between nine and ten o'clock of that morning. He was shot at that time and place by John Andersen, the cook of the vessel, and the prisoner here. I saw him shoot him. I was at the wheel of the vessel, in the wheel house, just aft of the after cabin. "I heard a report of a shot in the captain's

cabin, which was connected with the wheel Immediatehouse by the after companionway.

I

ly after, I saw John Andersen, the accused, come running up the after companionway, and through the wheel house, with a pistol in each hand, and one in his hip pocket. He ran up to John Lind, who was standing amidships by the rigging of the middle mast. He said something to Lind, but I did not hear what it was. heard him sing out to the mate, Saunders, who was up on the cross-tree of the foremast, at work in the rigging, and say, 'Come down, Mr. Saunders.' The mate said, 'What do you want, steward? In a little while the mate finished the job, and started down the rigging. When about midway down, and when the cook, Andersen, was standing on top of the forward house, the mate started down, and said, 'What you got in your hands, cook? I got guns,' he says. 'Where you get them? says the mate. 'Down in the cabin,' he says. The mate came down, and stepped on the forecastle head, not on the forecastle house. Then Andersen fired a shot. The mate reeled and faced him, and said, 'For God's sake, don't shoot me, cook.' The cook fired another shot, and the mate kept on reeling; and the cook fired another one, and a third one, when the mate fell, and he shot him once after he had fallen. Then the cook sung out to the men who were in the forecastle: 'I am in charge of this vessel. I am next to the mate.' He sung out again: 'Won't you fellows come out? They came out, and I saw them throw the mate's body overboard. I was at the wheel all the time. Then he marched the whole gang aft, and went down in the cabin, and brought the captain up and threw him overboard. He then said, 'If any man like, he can put me in irons.' He had two or three pistols,one in his hands then. He had said he was in charge of the vessel, and had ordered the men to throw the mate and captain overboard. I was at the wheel all the time. Then he says, 'Boys, come down and have a drink.' He went down in the captain's cabin, and handed a bottle of whisky, about two parts full. He gave each a drink, and took one himself. Then he marched the whole gang up on deck, just outside the door of the wheel house, and said, 'You know all you men is guilty for helping me throw the bodies over the side.'

"The Spaniard told him to keep the vessel off; to clew up the gaff topsails and jibs, the outer jib, and make for port. The cook said: 'Damn! you want me to get hung.' We said: 'No, steward, we don't want you to get hung.' All the time he was armed. After a little he said to the Spaniard: 'You the only sensible man amongst the crowd. I want to speak to you.' Then he called John Lind, afterwards, and spoke to him. I don't know what he said. He ordered the men to do so and so. I left the wheel, and went to the forecastle. The rest of the men came forward to get their clothes. He ordered us to get our best clothes, and no more. He said, Take no discharges, bank books, nothing.' He ordered the men down in the booby hatch to get up a barrel addressed to the American consul at Buenos Ayres. Then he told me to go down in the galley to tap some paraffin oil. I said 'No.' He says, 'You go,' and handed his pistol in my face. All right.' I says, 'steward.' I filled three buckets and passed them up, and Andrew March took it and threw it on the deck load. He was standing there armed all the time. Then he (the cook) ordered me to take the wheel. I went. The first fire commenced at the booby hatch. The next was forward. The boat was lowered, and provisions put in it. It was

twelve or one o'clock when we left the Olive Pecker. No vessels were in sight which could have picked up the bodies of the mate and captain.'

He then gave the particulars of the sail to the shore, the arrest, etc.

This witness further said that, when Ander

sen called to Saunders to come down "The mate asked him, 'What do you want, steward? He finished his job, and hung the marline spike around his neck, and came down the rigging. The marline spike had a half hitch on the point, which put the point upwards. That is the way sailors do it, to keep the point from striking them as they go up and down the rigging.

"There was nothing to keep me from seeing the mate in the rigging, and when he came down, and all along the vessel on her port side to where the shooting occurred. The sails were all swinging to starboard. The lumber was so piled on the deck that a man running along on it would run right on top of the forward house. John Andersen was standing on top of the forward house when he shot the mate, and the mate was standing on the forecastle deck. The forecastle deck is about three feet lower than the top of the house where the cook was standing. The body of the mate was lying, when picked up, on the forecastle head, on the left side of the vessel."

On cross-examination he said: "I mean to tell the jury that five of us were intimidated by that one man, the cook,-the cook with the pistols. He intimidated us so that when he ordered us to burn the ship we obeyed. He was following us up all the time. He ordered one to go there and another to go there, and another one there. We had to follow the man at the point of the pistol, or else get killed. We did what we were told to do through his pistol.

* * When the mate came down out of the rigging, he asked the cook, 'What have you got in your hands, steward? The steward said, 'I got guns.' The mate came down, stepped on the forecastle head, and John Andersen fired a shot. The marline spike was not in the mate's hand, but was hanging around his neck, with the point up. I am sure of that, though I was a hundred and fifty feet away. I did not have a glass. The mate was standing with his hands at his side, with the marline spike around his neck. He did not make any hostile demonstration towards the cook. He did not come at him to strike him. I am positive of that. I do not know the mate had threatened the cook's life."

Lind testified:

I

"I last saw Mate William Saunders on the 6th of August of this year. He was killed that morning by John Andersen on the forecastle head, on the left or port side thereof. I saw Andersen just before the shooting of the mate that morning, coming up from the cabin through the after companionway and through the wheel house. I was standing amidships. He came up with a revolver in each hand. He came right up to me, and asked me where the mate was, and said, 'I have killed the captain, and now the mate goes, too.' The mate was then aloft, in the rigging of the foremast. I went then down on the lee or starboard side of the vessel to the forecastle house. I went and called the watch below in the forecastle house. said, 'You better look out, because the cook is on deck with revolvers.' *As I was calling through the window, I could not see on the left of the vessel. While I was calling to the men, I heard a shot on the port side, on the forecastle head. I heard three or four shots. I don't know exactly know-how many. I heard the steward call to the men to come out,-for all of them to come up there. He was calling the men in the forecastle house. He said he wanted us to throw the body overboard. When I came up, all hands were there except the man at the wheel, Martin Barstad. The mate was lying on the forecastle head, with his face downward. He had a marline spike tied around his neck. A marline spike is used for splicing ropes, an instrument that all sailors carry aloft when they go up to splice a rope. It is carried around the neck by a long lanyard, and a half hitch on the point to keep it from sticking in his legs. We threw the body overboard. Then

the cook told us to come aft, and get the captain's body overboard. We went in the after cabin, and found the captain sitting in his chair; sitting like this, sir, with his hands folded in his lap. He looked as if he was alive. I saw blood on the side of his head, on the left side. We were told to take him up by Andersen. He helped. He was taken up and thrown overboard. Andersen was armed all this time. Before throwing the captain's body overboard, Andersen took hold of the captain's arm and felt his pulse. When the body was thrown overboard, Andersen cursed it. The captain's body was sitting in a chair in the after cabin, near the sofa on the starboard side of the cabin. He was facing forward. I had only been in the cabin once before, when we were in Boston. On American vessels, seamen do not go in the captain's cabin unless they are sent or called there. There are doors opening from the forward cabin into the after cabin, and from the mate's room into these cabins.

"After the captain's body was thrown overboard, Andersen told us to go down, and he would give us a drink. We went down in the cabin,-in the forward cabin, where the diningroom table was,-and got a drink. I don't recollect whether Andersen drank with us or not. There was not much liquor in the bottle; a little over half a bottle, I think; not enough to make any one drunk. I didn't see any one drunk. After taking a drink, we went up on deck, and talked about making the small sails fast. The Spaniard and myself suggested that the small sails be made fast, and to make for land. This was not done. Andersen said, 'No; keep her up to her course,'-she was off a little. 'Keep her up to her course,' he said; 'you want me to be hanged? He then said to the Spaniard: 'You are about the sensiblest man. I want to speak to you.' I did not hear what he said to him. He then called me. I went to the lee side of the wheel house and he asked me what I thought was best to do with the vessel. I said, 'The only thing we can do now is to try to make for some land.' He said, 'No; nothing is going to be done but to destroy the vessel.' He did not say anything more to me after that. If he spoke to any of the rest, I didn't see or hear it. He then ordered everything to make ready for to leave the ship. The old boat sail was all tore up, and I started to patch that. I was engaged about it about an hour, I should think. He then gave orders to lower the boat. Me and the Spaniard lowered the boat. It was the big boat you see hanging at the stern in the picture. Me and the Spaniard did lower the boat, and Andrew March went down and unhooked the tackle, and we hauled the boat up alongside the _vessel, and got some provisions down there. Then the cook called Andrew, and he went up. After I was through with that, I went up on the house again, and I saw flames coming out of the after hatch. She was afire then. Then they all went down in the boat, and all hands cut the boat adrift, rigged up the mast, and started to sail. The cook helped us to rig up the mast and sail. He was armed all that time with pistols. I do not think any other members of the crew had pistols. I did not see any of them have pistols. There were no vessels sighted after the bodies of the captain and mate were thrown overboard which could possibly have picked up the bodies."

On cross-examination this witness gave an account of a difficulty between the cook and the captain that morning about the captain's dog. About 8 o'clock the captain's dog was down by the galley door, and the cook threw some water on him. The dog ran up on the deck load, "hollering." The captain came up, and said to the cook, "Did you throw hot water on that dog?" Andersen replied that he did not throw hot water on him; that it was cold. The captain felt the dog's back, and then called the cook a liar, cursed him, and struck him. Lind did not see