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Opinion of the Court.

the omission to make mention of the Indian reserve, the power existed in Congress to invade the sanctity of the reservation and disregard the guarantee contained in the treaty of 1820, even against the consent of the Indians, party to that treaty, and as the requirement of the grant necessarily demanded the possession of the portion of the reserve through which the canal was to pass, the effect of that act was to extinguish so much of the Indian reserve as was embraced in the grant to the State for canal purposes. Missouri, Kansas & Texas Railway v. Roberts, supra, 116-117.

As to the remaining portions of the reserve, however, the use and the right of use by the Indians continued, and, until they surrendered that right by the treaty of 1855, the reserve continued to exist. If the reservations made by the orders of 1847 were not then operative, it is clear that upon the extinguishment of the Indian title to possess and occupy the reserve the land stood simply in the category of lands included within an Indian reservation, the title to which had been extinguished by the United States during the operation of the act of September 4, 1841, c. 16, and, consequently, by the tenth section of that act, 5 Stat. 456, the land was not subject to preëmption. It follows that the attempted preëmption by Adsitt in 1859 was illegal, the Commissioner of the General Land Office properly ordered the cancellation of the entry certificate, the plaintiff in error acquired no right to the land in question by the quitclaim deed of Adsitt, and hence his bill was properly dismissed. The judgment of the Supreme Court of the State of Michigan is, therefore,


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L-ed 474 106f 895

No. 491. Submitted March 5, 1895. -Decided January 6, 1896.

An assignment of error which indicates the subject-matter in the charge to which the exceptions relate with sufficient clearness to enable the court, from a mere inspection of the charge, to ascertain the particular matter referred to, is sufficient.

Acts of concealment by an accused are competent to go to the jury as tending to establish guilt, but they are not to be considered as alone conclusive, or as creating a legal presumption of guilt, but only as circumstances to be considered and weighed in connection with other proof with the same caution and circumspection which their inconclusiveness, when standing alone, requires.

The presumption of guilt arising from the flight of the accused is a pre-
sumption of fact- not of law-and is merely a circumstance tending
to increase the probability of the defendant's being the guilty person,
which is to be weighed by the jury like any other evidentiary circum-

A statement in a charge to the jury that no one who was conscious of
innocence would resort to concealment is substantially an instruction
that all men who do so are necessarily guilty, and magnifies and distorts
the power of the facts on the subject of the concealment.
The court below charged the jury as to the probative weight which should
be attached to the flight of the accused, as follows: "And not only this,
but the law recognizes another proposition as true, and it is that the
wicked flee when no man pursueth, but the innocent are as bold as a
lion.' That is a self evident proposition that has been recognized so
often by mankind that we can take it as an axiom and apply it to this
case." Held, that this was tantamount to saying to the jury that flight
created a legal presumption of guilt, so strong and so conclusive, that it
was the duty of the jury to act on it as axiomatic truth, and as such that
it was error.

On these points the charge of the court was neither calm, nor impartial, but
put every deduction which could be drawn against the accused from the
proof of concealment and flight, and omitted or obscured the converse
aspect; and in so doing it deprived the jury of the light requisite to the
safe use of these facts for the ascertainment of truth.
The plaintiff in error being indicted for the murder of one Wilson, became
a witness on his own behalf on his trial. The court charged the jury:
"Bearing in mind that he stands before you as an interested witness,

Opinion of the Court.

while these circumstances are of a character that they cannot be bribed, that cannot be dragged into perjury, they cannot be seduced by bribery into perjury, but they stand as bloody naked facts before you, speaking for Joseph Wilson and justice, in opposition to and confronting this defendant, who stands before you as an interested party; the party who has in this case the largest interest a man can have in any case upon earth." Held, that such a charge crosses the line which separates the impartial exercise of the judicial function from the region of partisanship where reason is disturbed, passions excited, and prejudices are necessarily called into play.

THE case is stated in the opinion.

Mr. A. H. Garland for plaintiff in error.

Mr. Assistant Attorney General Whitney for defendants in


MR. JUSTICE WHITE delivered the opinion of the court.

Sam Downing, alias Sam Hickory, and Thomas Shade were indicted in October, 1891, for the murder in the Indian Terri tory of a white man by the name of Joseph Wilson. Downing, who was at the time of the alleged killing nineteen years old, was tried and convicted, and the case was brought by error here. The verdict and judgment were reversed and the case was remanded for a new trial. Hickory v. United States, 151 U. S. 303. On the trial, the defendant was again found guilty of murder, and the case for the second time comes here by error. The assignments of error are twelve in number, and all relate to errors alleged to have been committed by the trial court in the charge given to the jury. The charge covers twenty pages of the printed record. To correctly understand the merits of the various assignments of error it is necessary to briefly refer to the testimony which is stated in a condensed form in the bill of exceptions.

The testimony for the prosecution tended to show that Wilson, the deceased, was a deputy marshal and had a warrant for the arrest of the accused upon the charge of taking whiskey into the Indian country. With this warrant he started to a house where he expected to find Hickory, being

Opinion of the Court.

accompanied by John Carey. Wilson and Carey proceeded together until just before reaching this house. Carey then informed Wilson that he would go no further with him, as he did not wish to be known in the neighborhood in connection with the arrest. It was then arranged between them that Carey should remain in the woods while Wilson should continue on to the house and make the arrest. Wilson had with him "a large white handle pistol," and told Carey that if he found the accused he would fire off his pistol after arresting him, in which case Carey would meet him, "close to Brown's on the prairie." Wilson then proceeded on his way and Carey remained in the woods awaiting the signal agreed upon. In about half an hour Carey heard the firing of "a gun," then "two guns" went off together, then there were several shots "which sounded as if they were fired by one man, and as if he was taking his time to fire." Carey waited for Wilson until sundown, and as he did not then come he (Carey) went to the house of Squirrel Carey and "told him about hearing the shooting and that Wilson was to fire his pistol, but he did not say how many times." The government also introduced proof showing that some days afterwards the body of Wilson was found in a gulch or ravine, and there was a gunshot wound straight through the body; that the skull was fractured, and that there was a contused wound or bruise at the base of the brain. The person of the deceased had not been rifled, and on it was found his watch and papers, among the latter the warrant for the arrest of Hickory.

Further testimony was introduced tending to show that an examination of the house where Wilson had gone to arrest the accused disclosed spots of blood on the porch, in the house, on the door, and in the yard at several places, and on a wagon standing in the yard, and that efforts had been made to conceal these spots of blood. There was also testimony showing bullet marks in the house; that "certainly one and probably two shots were fired from a southeasterly direction where the marshal likely was at the commencement of the shooting, towards the front door, one striking a corner

Opinion of the Court.

post and the other the wall near the door. Two shots had been fired from the inside of the house through the front door, as shown by the holes. One shot had been fired from the large front room, glancing the middle door shutter, which was open, and going into the wall of the rear room, and another had gone into the wall of said rear room opposite the centre of the middle door."

Testimony was further offered tending to show that Wilson's horse was found dead some distance from the house, and the witnesses could not tell whether "its throat had been cut or eaten by wild animals, as they had been working on it." It was also shown that when Wilson went to the house he had a pistol, a bridle, and a saddle, on which a coat was strapped, and these things were not found. The government then further introduced testimony tending to show that the accused had told three or more witnesses "that he shot the deceased, and hit him the first shot, but did not kill him, and that Tom Shade, who was there with defendant, knocked the deceased in the head with an axe; that after the killing an attempt had been made to destroy the blood spots in the house and yard." It further introduced testimony tending to show that after the killing the accused was "scouting,' that is, avoiding arrest." Upon this proof the case for the prosecution was rested. The accused, after introducing testimony tending to rebut the alleged confession by showing that he was not in the place named at the time it was stated the confession had been made, then testified in his own behalf, admitting the killing of Wilson, and giving substantially the following account of the occurrence: He was in the yard hitching up a team of horses for the purpose of hauling a load of posts, when Wilson came into the yard and asked him his name, which he gave him, and thereupon Wilson put him under arrest and read the warrant to him; that he replied, "All right," and unharnessed the horses and turned them loose; that Wilson asked him whether he was going to ride one of the horses, and he replied, "No, that they did not belong to him;" that thereupon Wilson asked him who was the owner of the horses, and he said the owner was not there,

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