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Opinion of the Court.

Nation, by nativity or by adoption, are the sole or only parties, it omits that portion of the thirteenth article of the treaty, wherein is reserved to the judicial tribunals of the Nation exclusive jurisdiction“ where the cause of action shall arise in the Cherokee Nation,” and to that extent apparently supersedes the treaty.

The real question as respects the jurisdiction in this case is as to the meaning of the words “sole” or only “parties.” These words are obviously susceptible of two interpretations. They may mean a class of actions as to which there is but one party; but as these actions, if they exist at all, are very rare, it can hardly be supposed that Congress intended to legislate with respect to them to the exclusion of the much more numerous actions to which there are two parties. They may mean actions to which members of the Nations are the sole or only parties, to the exclusion of white men, or persons other than members of the Nation; and as respects civil cases at least, this seems the more probable construction.

But the difficulty is with regard to criminal cases, to which the defendant may be said to be the only party; and, if not, as to who is the other party, the sovereignty in whose name the prosecution is conducted in this case, the United States, or the prosecuting witness, or, in a homicide case, the person who was killed. Some light is thrown upon this by the seventh article of the same treaty, wherein a special provision is made for the jurisdiction of the United States court to be created in the Indian Territory; and until such court was created therein, the United States District Court, nearest to the Cherokee Nation, was given “exclusive original jurisdiction of all cases, civil and criminal, wherein an inhabitant of the district herein before described” (meaning the Canadian district of the Cherokee Nation) “shall be a party, and where an inhabitant outside of said district, in the Cherokee Nation, shall be the other party, as plaintiff or defendant in a civil cause, or shall be defendant or prosecutor in a criminal case." It is true that the homicide in this case was not committed within the Canadian district, and, therefore, that this seventh article has no direct application, but it has an indirect bear

Opinion of the Court.

ing upon the thirteenth section as indicating an intention on the part of Congress to treat the prosecutor in a criminal case as the other party to the cause, and so long as the party injured is alive, it may be proper to speak of him as such; and this we understand to have been the construction generally given. While it is impossible to speak of the deceased in a murder case as a party, in any proper sense, to a criminal prosecution against his assailant, it can scarcely have been the intention of Congress to vest jurisdiction in the Federal courts of cases in which the accused, an Indian, was guilty of a felonious assault upon a white man, not resulting in death, and deny it in case of a fatal termination, upon the ground that the accused is the only party to the cause.

In construing these statutes in their application to criminal cases, and in connection with the treaty, there are but three alternative courses.

(1) To treat the defendant as the sole party; in which case the Indian courts would have jurisdiction, whether the victim of the crime were an Indian or a white man. In the Case of Mayfield, 141 U. S. 107, which was a case of adultery, in which the name of the prosecuting witness did not appear, we held that as there was no adverse party, the woman being a consenting party, the defendant was to be regarded as the sole party to the proceeding.

(2) To treat the United States as the other party to the cause; in which case the Federal courts would have jurisdiction of all criminal cases, except as they might be limited by the clause of Rev. Stat. $ 2146, providing that such jurisdiction “shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian.”

(3) To treat the victim of the crime, whose person or property has been invaded, as the other party; in which case the Federal courts would have jurisdiction in all cases in which the victim was a white man, or other than an Indian. Under this construction the word "parties” would really mean parties to the crime and not simply to the prosecution of the crime.

The last proposition harmonizes better with what seems

Opinion of the Court.

to have been the intention of Congress, as evinced in that clause of Rev. Stat. § 2146 which reserves to the courts of the Nation jurisdiction of “crimes committed by one Indian against the person or property of another Indian,” and at the same time avoids the anomaly of holding a murdered man to be a party to the prosecution of his slayer. Upon the whole we think it affords the most reasonable solution of the problem. For the purposes of this case, therefore, we hold the court below had jurisdiction.

There were a number of exceptions taken to the charge of the court, only two of which it will be necessary to discuss.

2. The eighth assignment of error is to the following instruction :

“When he" (the defendant) “is in that condition, if he was in that condition in this case, and was then attacked by Duncan, the deceased, in such a way as to denote an intention upon the part of the deceased to take away his, the defendant's, life, or to do him some enormous bodily injury, he could kill Duncan — when ? - provided he use all the means in his power otherwise to save his own life from the attack of Duncan, or preventing the intending harm, such as retreating as far as he could, or disabling his adversary without killing him. That is still a duty.”

In the case of Beard v. United States, 158 U. S. 550, the doctrine of the necessity of retreating was considered by this court at very considerable length, and it was held, upon a review of the authorities upon the subject, that a man assailed upon his own premises, without provocation, by a person armed with a deadly weapon, and apparently seeking his life, is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control; and so long as there is no intent on his part to kill his antagonist, and no purpose of doing anything beyond what is necessary to save his own life, is not guilty of murder or manslaughter if death result to his antagonist from the blow given him under such circumstances. In delivering the opinion it was said, p. 559 :

“But we cannot agree that the accused was under any greater obligation, when on his own premises, near his dwell

Opinion of the Court.

ing-house, to retreat or run away from his assailant, than he would have been if attacked within his dwelling-house. The accused being where he had a right to be, on his own premises, constituting a part of his residence and home, at the time the deceased approached him in a threatening manner, and not having by language or by conduct provoked the deceased to assault him, the question for the jury was whether, without fleeing from his adversary, he had, at the moment he struck the deceased, reasonable grounds to believe, and in good faith believed, that he could not save his life or protect himself from great bodily harm except by doing what he did, namely, strike the deceased with his gun, and thus prevent his further advance upon him.”

In the case under consideration it appeared that Duncan, the deceased, had been paying such attentions to the defendant's wife that it had caused them to separate, the wife living at a Mr. Lipe's, where the killing occurred, and defendant making his home with some colored people by the name of Graves. Defendant himself worked during the day at Lipe's, was frequently with his wife, and upon the evening in question had been to church with her and taken her home to Lipe's after the service. She went into the house and defendant went back into the lot, where the stock was, as it was a part of his duty to look after the stock. His version of the facts was that while he was in the lot he saw a window in the house, which opened into his wife's room, raised, walked out into the yard and found the deceased at the window, and said to him : “Who is that?” To which the deceased replied, with an oath : “You will find out who it is; " "and then made at me at that time. That is the first time I had seen him there. And then I knew his voice, and he made at me as if he had something and was going to kill me, and I had this little pistol in my pocket and I run backwards toward the front yard and told him to stand off, . . and I called Mr. Lipe, who got up and came to the door and asked what was the matter;" to which defendant replied: “This man here was trying to get up in your window where my wife sleeps

and then I moved away – I started to move and this fellow says

Opinion of the Court.

me.

to me, he says, “I will kill you, God damn you,' and made for

He was between me and the house and I was next to the gate, and I broke for the gate to try to get out of his way, and as I broke for the gate he was coming at me, seemed like he was going to cut me with something; I couldn't tell what it was and I threw myself around that way (illustrating) and fired.”

It was in this connection that the court gave the charge covered by the eighth assignment, adding thereto:

“If a man attacks us wrongfully, if he is seeking then and there to make an attack upon us in such a way as to jeopardize life, and we can turn aside that attack without destroying his life, it is our duty to do it. It is our duty, in the first place, to get out of the way of the attack, and that is a duty springing from our own self interest, because if a man can avoid a deadly result with due regard to his own safety, is it not better for him to do it, than to rush rashly into a conflict where he may lose his life? He is doing it in the interest of his own life. And then, aside from that, in the interest of the life of the party who attacks him, he is required to do it. Then, under this proposition, to give the defendant the benefit of it, he must have been doing what he had a right to do at the time, and while so situated he must have been attacked by Phil Duncan, the deceased, in such a way as to indicate, from the nature of that attack, and the way he was executing it, a purpose upon the part of Duncan then and there by that conduct to take his life, or to inflict upon him some great violence: and he must have been so situated, so surrounded by danger, that he could not get out of the way of it, or he could not turn it aside by an act of less violence than what he did do. He must have exercised reasonable means, in other words, to avoid the dreadful necessity of taking human life, because the law says that he could kill, provided he use all the means in his power otherwise to save his own life.”

We think the charge of the court in this connection is open to the same objection that was made to the charge in the case of Beard v. United States. The only difference suggested is that in that case the attack was made with firearms, and in

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