Hicks v. United States

150 U.S. 442 (1893)

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Nature of the Case

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Facts

There was a dance at the house of Jim Rowe, in the Cherokee Nation. Jim was a brother to Stand Rowe, who was indicted jointly with Hicks (D). There were a large number of men and women at the dance. Stand and D were engaged in eluding the United States marshals who were in search of them with warrants for their arrest. They were armed for the purpose of resisting arrest. They appeared at the dance, each armed with a Winchester rifle. Colvard was a white man who had married a Cherokee woman. He came to the dance on horseback. A good deal of whiskey was drunk during the night by the persons present, and Colvard appears to have been drunk at some time during the night. Colvard spoke Cherokee fluently, and appears to have been very friendly with Stand and D. As the party was dispersing, Colvard invited Stand and D to go home with him. He offered to give Stand a suit of clothes, and a hat and boots. The urgency of the invitations appears to have excited the suspicion of D. D declared openly that if Colvard persisted in his effort to take Stand away with him, he would shoot him. By 7 in the morning on the 13th, a number of men saw Stand coming on horseback in a moderate walk, with his Winchester rifle lying down in front of him. Before he appeared, the men heard a 'whoop' in the direction from which Stand came, and this 'whoop' was responded to by one from the main road in the direction of Jim Rowe's house. Stand halted within five or six feet of the main road, and the men on the porch saw Colvard and D riding together down the main road from the direction of Jim Rowe's house. The witnesses saw and heard them in a conversation that could not be understood. It was carried on in the Cherokee tongue, but some part of this conversation was distinctly heard and clearly understood by witnesses. Stand raised his rifle and took aim at Colvard twice before he lowered it. They heard Colvard say, 'I am a friend to both of you.' They saw and heard D laugh aloud when Stand directed his rifle towards Colvard. They saw D take off his hat, and hit his horse on the neck or shoulder with it. They heard D say to Colvard, 'Take off your hat, and die like a man.” The witnesses saw Stand raise his rifle for the third time point it at Colvard and fire it. Colvard's horse wheeled and ran back in the direction of Jim Rowe's house, and they saw Colvard fall from his horse. He was dead. Stand Rowe and D rode off together after the shooting. D denied that he had encouraged Stand to shoot Colvard. The evidence clearly disclosed that D did not shoot the deceased, nor take any part in the physical struggle. The prosecution relied on evidence that Stand and D cooperated in inducing Colvard to leave the house, where they and a number of others had passed the night in a drunken dance, and to accompany them up the road to the spot where the shooting took place. D denied having stated that Colvard take off his hat and die like a man. That D and Stand rode off together after seeing Colvard fall was used as a fact against D, pointing to a conspiracy between them. D claimed he feared for his life and that he separated from Stand a few minutes afterward, on the first opportunity (never to meet again), and that he had not been in the company of Stand for several weeks before the night of the fatal occurrence. The trial judge instructed the jury that if they found D’s words had the effect of encouraging Stand to kill Colvard, they could convict D of murder. D was convicted and appealed.