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Statement of the Case.

We are, therefore, of opinion that Brown obtained a good title to the land in question by the patent of December 1, 1876, and the judgment of the Supreme Court of Colorado is accordingly

WILSON v. UNITED STATES.

Affirmed.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.

No. 884. Submitted April 13, 1896. Decided April 27, 1896.

Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances, or accounted for in some way consistent with innocence.

The existence of blood stains at or near a place where violence has been inflicted is relevant and admissible in evidence, and, if not satisfactorily explained, may be regarded by the jury as a circumstance in determining whether or not a murder has been committed.

The testimony of the defendant in a criminal case is to be considered and weighed by the jury, taking all the evidence into consideration, and such weight is to be given to it as in their judgment it ought to have.

In the trial of a person accused of murder, the picture of the murdered man is admissible in evidence, on the question of identity, if for no other

reason.

The true test of the admissibility in evidence of the confession of a person on trial for the commission of a crime is that it was made freely, voluntarily and without compulsion or inducement, and this rule applies to preliminary examinations before a magistrate of persons accused of crime. When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury, with the direction that they should reject it if, upon the whole evidence, they are satisfied that it was not the voluntary act of the defendant.

WILSON was convicted of the murder of one Thatch, both being white men and not Indians, on May 15, 1895, at the Creek Nation in the Indian country, and sentenced to be

Statement of the Case.

hanged. There was evidence tending to show that Thatch's body was found in a creek near where Wilson and Thatch had camped together two weeks before, in a state of decomposition indicating that deceased had been dead for that length of time. Wilson was arrested the day the body was discovered, and had in his possession five horses and a colt, a wagon, gun, bed clothing and other property that had belonged to Thatch. When Thatch left home he had no money except some thirty dollars in cash and a certificate of deposit for one hundred and forty dollars, issued by the bank of Springdale, Arkansas. Wilson, when taken, had about twenty-eight dollars, and the certificate of deposit was found among Thatch's things in a trunk claimed by Wilson. All of Thatch's clothing was in the possession of Wilson, except a pair of overalls, and the body had on a pair of overalls similar to Thatch's. The bed clothing was bloody and the blood had passed through the bed, the bloody parts being a foot or more in diameter; a pillow case belonging to Thatch was sewed over the blood spots on one side of the bed tick and a flour sack sewed over those on the other; charred pieces of cloth and some buttons were found at the camping place, and some blood in the ground under where there had been fire.

Wilson claimed that Thatch was his uncle, but Thatch's relatives knew of no such relationship; also, that he had known Thatch for several years, but the evidence tended to show that Thatch had never known Wilson before he was brought to his camp by a boy who had started with Thatch from Springdale, Arkansas, but concluded to return, and was requested to find some one else to go in his place.

On the day before that on which he was alleged to have been killed, Thatch and Wilson were seen camping at dark near the creek, and that night about ten o'clock two gun shots were heard in that direction, but the body was so badly decomposed that it could not be told whether any bullets had entered it. The head was crushed with some blunt instrument, and there was testimony that an axe found in Wilson's possession had blood on it. Wilson was seen at the camp the next morning at sunrise, but Thatch was not there. Wilson

Statement of the Case.

said that Thatch had left about two weeks before the discovery of the body, and that he had heard nothing from him since; told contradictory stories as to where Thatch had gone; asserted that Thatch owed him and the indebtedness was liquidated by his purchasing the wagon and two of the horses; that he bought the clothing after the time he said Thatch had left; that the pillow case was sewed on the bed tick when he bought it; that Thatch rode away on horseback, though Thatch's saddle was there, the only pair of shoes that Thatch had was there, the plates had been taken from the heels of the shoes, and similar plates were found in Wilson's possession. The body had on no shoes, hat or coat, only an undershirt, overalls and a pair of socks. Tracks resembling Wilson's near where the body was found were testified to. Wilson admitted that he had been there, and then said that it was lower down the creek. One witness, after Wilson was put in jail, assured him that he would go and look for Thatch if necessary, and Wilson told him not to go, as it was not necessary. His explanations of the appearances against him, on the stand and otherwise, were inadequate and improbable, and evidence in much detail showed that many of his statements were false.

Wilson called witnesses to show that the blood found on the bed clothes had gotten there from the blood of a prairie chicken which they had killed, and also from the bleeding of sick horses, and that Thatch had been seen in Oklahoma Territory several times after the body was found.

Wilson testified, among other things, as set forth in the bill of exceptions, "that after he was arrested he was taken to Keokuk Falls, where a great crowd of people gathered around him and threatened to mob him, and he was taken before J. B. George, who proceeded to examine him in the presence of the crowd without giving him the benefit of counsel, or warning him of his right of being represented by counsel, or in any way informing him as to his right to be thus represented."

On behalf of the United States a written statement purporting to have been made by Wilson before J. B. George was offered in evidence and objected to "on the ground that it was not voluntary;" whereupon J. B. George was examined on be

Statement of the Case.

half of the government and testified that he was a United States commissioner; that Wilson was brought to his office at night; there was a crowd at the door and talk of mobbing; and he directed him to be turned over to the city marshal to be taken to jail; that he examined him the next day, and that the statement was his statement as made and written down at the time; that he read the charges to Wilson and went on and examined him, and he answered the questions; that he was not represented by any attorney; that witness had the questions and answers taken down by others than himself, but did not read them over to Wilson as he remembered; it was just Wilson's statement of the case; that Wilson voluntarily made the statement that is, he (George) asked the questions and Wilson went on and answered them. He did not tell Wilson that he had a right to answer or not as he chose, or advise him as to his rights, or tell him he had the right to be represented by counsel; that there were a dozen or more present; that there had been a talk of mobbing before Wilson was interrogated. The witness said that he told Wilson that the bed. clothes and the axe showed his guilt, but that was not before he made the statement but at the winding up; that other witnesses were examined, but not in the presence of Wilson. George was asked whether" the statement was made freely and voluntarily," and answered "Yes, sir. I stated the charge to him and went on and asked him these questions and he answered them, and that is what was done. He went on and made these replies to my questions." One Edmons testified that he wrote down some of the questions and answers and did it correctly. The statement was then again offered in evidence, defendant objected, his objection was overruled, the statement admitted, and he excepted. This statement was throughout a denial of guilt, but contained answers to questions which were made the basis for contradiction on the trial.

The district attorney offered in evidence a picture purporting to be that of Thatch. Defendant objected to its introduction, his objection was overruled, and he excepted.

The court charged the jury, among other things, as follows: (1) "The law says that if a man has been killed, and killed

Statement of the Case.

in such a way as to show that it was done murderously under the law I have given you defining the crime of murder, then you are to look to see whether the party accused of the killing was found in possession of any of the property of the man killed. If so, that is the foundation for a presumption. It is not conclusive in the beginning, but it is a presumption which you are to look at just as you would look at it as reasonable men outside of the jury box. The party so found in possession of such property, recently after the crime, is required to account for it, to show that as far as he was concerned that possession was innocent and was honest. If it is accounted for in that way then it ceases to be the foundation for a presumption. If it is not accounted for in that satisfactory, straightforward and truthful way that would stamp it as an honest accounting, then it is the foundation for a presumption of guilt against the defendant in this case, just upon the same principle if a certain man is charged with robbery or larceny, and is found in the possession of the property stolen or robbed recently after the crime, he is called upon to explain that possession. If his explanation of it is truthful; if it is consistent; if it is apparently honest; if it is not contradictory; if it is the same at all times; if it has the indicia of truth connected with it, that may cause to pass out of the case the consideration of the presumption arising from the possession of the property, but if it is not explained in that way it becomes the foundation of a presumption against the party who is thus found in possession of that property.

(2) "Now, that is not the only foundation for a presumption, but you take into consideration the very appearance of this property, whether there were blood stains upon it, indicating that there was blood of some kind there; and, if so, whether that fact has been satisfactorily explained by the defendant in this case. If not, whether, in your judgment, there is that in these numerous blood stains upon these clothes, bed clothing, and found upon the straw in that bed, whether or not that fact, if it has not been satisfactorily explained, is a fact upon which you may base a presumption that there was an act of deadly violence perpetrated while the party was

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