Starr v. United States (153 U.S. 614)
Henry Starr was convicted of the murder of Floyd Wilson, a white man, and not an Indian, on December 13, 1892, at the Cherokee Nation, in the Indian Territory, and November 4, 1893, sentenced to be hanged on February 20, 1894, and thereupon sued out this writ of error.
It appeared on the trial that on November 18, 1892, a warrant was issued by a United States commissioner for the western district of Arkansas for the arrest of Starr and others on a charge of larceny, which was delivered for execution to Henry E. Dickey, a deputy United States marshal, and that the marshal summoned Floyd Wilson, the deceased, as his posse to aid in the execution of the warrant. The evidence tended to show that they proceeded on horseback to the neighborhood of the place where Starr was to be found, and, after visiting several points, came to the house of one Dodge, where they concealed themselves, to await his coming; that Starr passed Dodge's house on horseback, whereupon Wilson mounted his horse, and pursued him; that the two jumped from their horses, and stood facing each other a short time, apparently talking; that it looked as if Starr 'was trying to work off away from Wilson,' when Wilson mounted his horse again, and rode up to within 25 or 30 feet of Starr, who made no effort to flee, that Wilson then sprang from his horse, threw his gun to his shoulder, and fired at Starr, who was then standing with his gun in both hands, holding it down, but, upon Wilson's shooting, returned the fire, and continued to fire rapidly; that Wilson fell, raised himself in a sitting position, jerked his sixshooter out, and fired four times, when Starr ran up to him, and fired point blank into him; Wilson died immediately afterwards. The evidence further tended to show that, during the affray, Starr fired one shot at the marshal; that he picked up Wilson's gun, found the lever out of order, could not fire it, and turned to go away, and as he turned the marshal fired at him; that the marshal's and Starr's horses ran away, but Starr caught Wilson's horse, and, mounting it, rode off. The marshal testified that at the time of this occurrence he had the writ in his possession, and had instructed Wilson as to his duties, and told him: 'Now, don't kill this boy, if possible to get along without it. We will call on him to surrender.'
One Mrs. Padget testified that she saw the transaction from a distance, called a quarter of a mile, and understood Wilson to say, 'Hold up; I have a warrant for you,' and that Starr said, 'You hold up.' She also, in answer to a question put by the district attorney, stated that, three or four weeks before the shooting, Starr told her that he guessed a marshal named Cowden was hunting for him, 'for jumping his bond.' And Dickey said, in the course of his testimony, that he went up in Starr's neighborhood to see a person 'shortly after Henry started, got out, and jumped his bond.'
The witnesses agreed that Wilson fired the first shot, and also that, during the time he was riding up to Starr, Starr did not raise his gun, or make any effort to stop Wilson. Starr was a Cherokee Indian, and at that time between 18 and 19 years of age.
The warrant was signed by Stephen Wheeler, 'Commissioner U.S.C.ourt, Western District of Arkansas,' and tested as under seal, but no seal was affixed; and counsel for defendant objected to the warrant for the want of a seal, and took exception to its admission on that ground, though, in answer to questions by the court, they admitted that Wheeler was a United States commissioner for the western district of Arkansas at the time the writ issued, and that the signature thereto was genuine.
A. H. Garland, for plaintiff in error.
Asst. Atty. Gen. Conrad, for the United States.
Mr. Chief Justice FULLTER, after stating the facts in the foregoing language, delivered the opinion of the court:
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