Sparf & Hansen v. U S, 156 U.S. 51 (1895)

Mr. Justice GRAY, with whom concurred Mr. Justice SHIRAS, dissenting.

Mr. Justice SHIRAS and myself concur in so much of the opinion of the 
majority of the court as awards a new trial to one of the defendants by 
reason of the admission in evidence against him of confessions made in his 
absence by the other.

But from the greater part of that opinion, and from the affirmance of the 
conviction of the other defendant, we are compelled to dissent, because, in 
our judgment, the case, involving the question of life or death to the 
prisoners, was not submitted to the decision of the jury as required by the 
constitution and laws of the United States.

The two defendants, Herman Sparf and Hans Hansen, together with Thomas St. 
Clair, seamen on board the brig Hesper, an American vessel, were indicted 
for the murder of Maurice Fitzgerald, the second mate, on the high seas, on 
January 13, 1893, by striking him with a weapon, and by throwing him 
overboard and drowning him.

St. Clair was separately tried, convicted, and sentenced, and his conviction 
was affirmed by this court at the last term. 154 U.S. 134, 14 Sup. Ct. 1002. 
At the trial of Sparf and Hansen, there was no direct testimony of any 
eyewitness to the killing, or to any assault or affray. There was evidence 
that at 10 o'clock in the evening of the day in question the second mate was 
at the wheel, in charge of the starboard watch, consisting of St. Clair, 
Sparf, Hansen, and another seaman; and that, when the watch was changed at 
midnight, the second mate could not be found, and there was much blood on 
the deck, as well as a bloody broomstick and a wooden bludgeon. The rest of 
the evidence consisted of testimony of other seamen to acts and statements 
of each defendant and of St. Clair, before and after the disappearance of 
the second mate, tending to prove a conspiracy to kill him; and to 
subsequent confessions of Hansen, tending to show that the killing was 
premeditated.

The judge, in his charge to the jury, gave the following instructions: 'The 
indictment is based upon section 5339 of the Revised Statutes, which 
provides, among other things, that 'every person who commits murder' 'upon 
the high seas, or in any arm of the sea, or in any river, haven, creek, 
basin or bay, within the admiralty and maritime jurisdiction of the United 
States, and out of the jurisdiction of any particular state, or who upon any 
of such waters maliciously strikes, stabs, wounds, poisons or shoots at any 
other person, of which striking, stabbing, wounding, poisoning or shooting 
such other person dies, either on land or at sea, within or without the 
United States, shall suffer death."

     'Murder is the unlawful killing of a human being in the peace of
     the state, with malice aforethought, express or implied.' 'Express
     malice' was defined as 'deliberate premeditation and design,
     formed in advance, to kill or to do bodily harm, the
     premeditation and design being implied from external
     circumstances capable of proof, such as lying in wait, antecedent
     threats, and concerted schemes against a victim'; and 'implied
     malice' as 'an inference of the law from any deliberate and cruel
     act committed by one person against another,' 'that is, malice is
     inferred when one kills another without provocation, or when the
     provocation is not great.' 'Manslaughter is the unlawful killing of
     a human being without malice, either express or implied. I do not
     consider it necessary, gentlemen, to explain it further; for, if a
     felonious homicide has been committed, -- of which you are to
     be the judges from the proof, -- there is nothing in this case to
     reduce it below the grade of murder.' 'Every person present at a
     murder, willingly aiding or abetting its perpetration, is guilty of
     murder, and may be indicted and convicted as principal in the
     first degree.' 'It is not my purpose, nor is it my function, to
     assume any fact to be proven, nor to suggest to you that any fact
     has been proven. You are the exclusive judges of the facts.' 

The defendants requested the judge to instruct the jury that 'under the 
indictment in this case the defendants may be convicted of murder or 
manslaughter or of an attempt to commit murder or manslaughter; and if, 
after a full and careful consideration of all the evidence before you, you 
believe beyond a reasonable doubt that the defendants are guilty either of 
manslaughter, or of an assault with intent to commit murder or manslaughter, 
you should so find your verdict.' The judge refused to give this 
instruction, and the defendants excepted to the refusal.

The jury, after deliberating on the case for some time, returned into court, 
and, being asked whether they had agreed upon a verdict, the foreman said 
that one of the jurors wished to be instructed upon certain points under the 
laws of the United States as to murder upon the high seas. One of the jurors 
then said that he 'would like to know, in regard to the interpretation of 
the laws of the United States in regard to manslaughter, as to whether the 
defendants can be found guilty of manslaughter, or that the defendants must 
be found guilty,' evidently meaning 'of murder,' the whole offense charged 
in the indictment. The judge then read again section 5339 of the Revised 
Statutes. The juror asked. 'Are the two words 'aiding' or 'abetting' 
defined?' The judge replied: 'The words 'aiding or abetting' are not 
defined. But I have instructed you as to the legal effect of aiding and 
abetting, and this you should accept as law. If I have made an error, there 
is a higher tribunal to correct it.' The juror said: 'I am the spokesman for 
two of us. We desire to clearly understand the matter. It is a barrier in 
our mind to our determining the matter. The question arising amongst us is 
as to aiding and abetting. Furthermore, as I understand, it must be one 
thing or the other. It must be either guilty or not guilty.' The judge 
replied: 'Yes, under the instructions I have given you.' The judge, then, 
after repeating the general definitions, as before given, of murder and of 
manslaughter, said: 'If a felonious homicide has been committed by either of 
the defendants, -- of which you are to be the judges from the proof, -- 
there is nothing in this case to reduce it below the grade of murder;' and 
in answer to further questions of the juror repeated this again and again, 
and said: 'In a proper case, it may be murder, or it may be manslaughter, 
but in this case it cannot properly be manslaughter.' The defendants 
excepted to these instructions. And finally, in answer to the juror's direct 
question, 'Then there is no other verdict we can bring in, except guilty 