Gentlemen of the Jury: In this case ninety-nine or a hundred persons are indicted for murder, comprising more than seventy Papago Indians, and more than twenty Americans and Mexicans, all residents of Arizona and of this vicinity. The accused, all but one, have been arraigned and pleaded to the indictment. Two of them have been relieved of the charges contained in the indictment by nolle prosequir. The rest of them, ninety-seven or ninety-eight, are on trial before you, and it is for you to say whether upon the evidence they are "Guilty," or "Not guilty."
The indictment alleges that the persons killed were Apache Indians, quartered at the time near Camp Grant in this District, as prisoners of war under the protection of the United States. It may, however, be doubted whether the victims were in any technical sense prisoners of war. The question, however, is immaterial, for it is certain that they all belonged to the Apache nation, which for some years has been in a state of hostilities towards the United States and its citizens and residents in this Territory, that they had surrendered to the troops of the United States at Camp Grant, and were there subsisted under an equivocal promise of peace and order. They were, therefore, in the custody, loose though it seems to have been, and under the protection of the United States, so far as to give this Court jurisdiction of the case under the laws of the United States, and they may for all the purposes of this trial be accepted in the character in which the indictment presents them: "Prisoners of war." The killing is alleged and proved to have been on the 30th of April of the present year.
The indictment contains four counts. In the three first they are all charged as perpetrators. In the fourth and last count, one of the accused is charged with the actual commission of the homicide, and all the others as present aiding and abetting. If the allegations thus made in the indictment were proved, they would all be equally guilty.
Murder, under the law of the United States, is as defined at Common Law; that is: "Murder is where a person of sound memory and discretion, unlawfully kills a reasonable creature in being, and in the peace of the commonwealth, with malice prepense or aforethought, either express or implied."
Such is the law, which I shall explain to you more fully hereafter. The indictment, I charge you, is sufficient for all the purposes of the present trial, and the Court has jurisdiction of the present case.
The case derives peculiar interest from the persons referred to, both as victims and perpetrators. The Apache Indians have been at war with the Spaniards, Mexicans and Americans for more than a century. The Papago Indians have generally been at peace, perhaps without exception, with the nations mentioned. They have, however, been at war, as they now are with the Apaches, from time immemorial. Both these Indian tribes, it is believed, were powerful organizations before our Hemisphere was discovered by the European ancestors of those who now control it. They then had policies and legal codes of their own, to which the perishing remnants of both tribes still cling with deathless tenacity. These tribal organizations and codes have been recognized and respected by Spain and Mexico; and they were in full existence when Arizona passed to the United States. They are also recognized and respected by the United States. Between the latter and portions of the Apache Indians, treaties have existed for some years. An Indian Agency has also been established by the United States, very recently, with the Papago tribe. It does not appear that the United States have ever interfered with the laws of the Apaches or the Papagos, crude though they may be, further than to restrain the hostilities of the former, or rather perhaps to attempt to restrain them.
These facts give rise to a certain legal deductions, which will be found very important in the present case.
The case itself is one of the most remarkable in the annals of jurisprudence. For numbers tried, it was doubtless paralleled in the King's Bench after the Gordon riots in London in 1780. The aboriginal element of the present case, alike interesting in its legal, moral, and physical aspects, never could have been found in Great Britain. In our own country only, could it have been found; but even here the case is without any parallel.
The persons killed were, as already stated, Apache Indians. Lieutenant Whitman states the number of dead bodies which he saw at between 30 and 40. He is certainly not as explicit as one, who then commanded there, who saw or ought to have seen all, and who has already written one or two reports on the subject, might have been expected to be, under oath. One witness for the defense saw about seventy dead bodies. The killing was the result of surprise and was perpetrated early in the morning. One old man and a young Indian about 18 years of age, were the only males excepting mere children. The whole number of Indians then at their encampment is proved to have been about 450, with a proportion of a little more than one in five of men. This would have given more than 90 men then belonging to the encampment, and yet only one of all these was killed. Where were they? As the attack was a surprise and made early in the morning, they must have been absent, not from fear of an attack, but from some motive prior and independent of that fact. Where they were and what they were doing are not provided. The absence is, however, an emphatic comment regarding those who are claimed to have been kept with any of the strictness of prisoners of war. All but two of the victims were women and children.
The killing by the persons indicted, has hardly been denied, since the plea of "Not guilty." It is indirectly but clearly proven to have been done by them or some of them. In the present case we have then established two of the three elements which constitute murder, the homicide and the perpetrators. The third remaining element is the motive, and that is to be deduced from the definition of murder.
The indictment is under the law of the United States, whose definition of murder is derived from the common law and not from our code. All or quite all the definitions of crime under the law of the United States are derived from the common law--this among the rest.
The definition for the present case is as follows: "murder is where a person of sound memory and discretion unlawfully kills a reasonable creature in being, and in the peace of the commonwealth, with malice prepense or aforethought, either express or implied."
To constitute murder, the motive to the deed must be malice. Murderous malice is a simple mental or rather moral condition. It is such deliberate hatred towards the victim of murder as leads the perpetrator to take his life, or such cold blooded indifference towards the lives of men as makes the perpetrator of a murder, reckless whether the person whom he kills lives or dies. This is the inquiry which remains for you in the present case. The murderous motive must not be insanity, or idiotcy, or irresistible despair, or insane fury, or overwhelming fear, or morbid apprehension, which the perpetrator of a homicide cannot resist, or some transcendent impulse which overthrows the self-control of the perpetrator of a homicide, and leads him in spite of himself to do the deed, nor must it be such a variety of conflicting or agitating impulses in the perpetrator of a homicide as destroys his moral conception of right and wrong and leads him blindly to the deed.
It must be malice deliberate and malignant, or cold blooded and reckless to a deadly degree. Was such the motive of the present case? Was this the mental or moral condition which led the perpetrators to do the act described in the indictment and proved in the testimony laid before you in the present case?
The rational or human being killed, must be fully born at the time of the killing. To kill an unborn or partially born child is not murder. The human being killed must be born and alive. The person killed must be "in the peace of the commonwealth." One killed in actual battle in public or lawful war, is not murdered, nor is he who does it a murderer. To kill a public enemy, when non-combatant, or when doing or threatening no act of war, when virtually at peace in or out of the country of the perpetrator, might be murder.
To kill one engaged in actual unlawful hostilities, or in undoubted preparation with others for active hostilities, would not be murder. In a country like this, the resident is not bound to wait until the assassin, savage or civilized, is by his hearth, or at his bed-side, or at his door, or until the knife of the assassin is at his throat. If he has undoubted evidence that others are preparing, alone or in combination, to destroy him and his property, he may anticipate his foe and quell or destroy him to secure his own personal safety. In a country like this, with few people, with none or very little police, filled with murderous savages far more numerous than the orderly and peaceful, that I charge you is the law. Any other rule of human life and action would place the quiet citizen in the power of his deadly and lawless enemy.
The law which constitutes our code, criminal as well as civil, has grown up in quiet, populous and strongly policed communities very different from this. It is the same in principle here as there. Here, however, in cases such as this, the administration of law requires peculiar care and caution to avoid judicial murder. The circumstances which constitute and control human motives here, are far graver than those of old, quiet communities with law supported by numerous population and adequate police. There the safety of the man is secured by others charged with the personal security of all the citizens. Here, amid innumerable perils, the citizen must take care of himself. Under heaven he has no one else to look to. In Arizona, arms are as necessary in travel and even in the isolated home or camp, as food or clothing. The farmer and herder carry them at the plow, and with the herd or the flock. By day they are on the person; by night, at the hand of the sleeper.
Men thus schooled possess characters and convictions of right and wrong very different from those of old and quiet communities. It is the bold, restless and adventurous who come here. No others cut loose from the place where they were cradled and all the amenities of home. Subject such persons to the trials above detailed, and you have exactly the characters belonging to one class of these defendants, painfully alert, fearful with the fears of brave men, and there is nothing more painful, suspicious and ready to meet deadly conflict for self or for a comrade. It was to trace, if possible, the motives of the defendants, to the acts for which they stand indicted, that I permitted the very considerable range the testimony of this case has taken.
If there ever was a case in which the law of life--Thou shalt not kill--announced in the oldest and most revered of all known codes, and repeated in everyone promulgated since, should be most cautiously applied, it is the present one in which the defendants have been schooled to agonizing apprehension, where the blood red line of a "a troubled frontier" is expanded into a vast domain of blood, where the very roads are traced by the gore and the graves of fallen wayfarers, where every copse may shelter its skulking murderers, where the very atmosphere is heavy with death, and where brave and honest men are compelled by stealthy night travel to avoid the light of day, lest it should guide the lead or steel of the assassin to the heart or the brain of his victim. I do not mean that--here or elsewhere--the boundaries of right and wrong should vibrate like a weaver's shuttle, but in a case such as the present, we should test the motive of the defendants by every actuating circumstance, to ascertain whether that motive was malice, or morbid apprehension, or a maddening sense of wrong, or misconceived right, or intolerable suffering, or gloomy despair, or conflicting impulses, involving these defendants in moral darkness, and impelling them in spite of themselves to do the deed charged in the indictment.
Another inquiry presented by this case is whether the defendants in the deadly attack on the Apache camp charged in the indictment, have violated any law of the United States, or whether that attack was not the exercise of a natural right to prevent or restrain the murder and spoliation to which the people of this Territory have been and are now subjected by the Apache nation, and, as the evidence in this case shows, by that portion of it quartered near Camp Grant on which the deadly assault, charged in the indictment, was made.
The relations of the different classes of the defendants towards the United Sates and its laws are by no means identical. I have already stated that both the Apache and Papago nations are tribal organizations with codes of their own, concerning peace and war, much older than the United States. In the language of the Supreme Court of the United States, announced in a celebrated case: "The Indian tribes are distinct, independent political communities, retaining the right of self-government, subject to the protecting power of the United States." It will be hard to show that this description is not as applicable to the Papago nation now, as it was to the Cherokees and other Indian tribes in 1832, when it was announced.
The evidence in the present case shows that a state of war now exists and has existed for an undefined and uncertain period between the Papago and Apache nations. By the barbarous codes of both nations, the slaughter of their enemies, of all ages and sexes, is justifiable, and such has been their practice. The United States has neither abrogated these codes for either of them, nor prevented hostilities between these Indian tribes, nor protected the Papagos from the murder and spoliation of the Apaches, for I submit that the evidence in the present case shows that the Papagos have been and now are subject to the predatory assaults of the Apaches. If the Papago nation were not exercising a recognized legal right in the murderous assault charged in the indictment, I charge you that it has not been and cannot be shown that they are guilty of murder as charged in the present case at all.
It is alleged in the indictment that the Apaches at the time the assault charged was made, were prisoners of war and thus under the protection of the United States. For all the purposes of the present case, this may be accepted as a true statement of their condition. Every government owes protection to all person within its limits and jurisdiction, while they are obedient to its laws and at peace towards other persons within the same limits. If they violate these laws or assail other persons subject to the common government, it is its duty to punish or restrain the law breakers and to prevent the assaults. All persons forfeit the right of government protection, who persist in infringing its law, or in assailing, murdering and despoiling other persons entitled to the same protection. It is the duty of government to protect all persons and classes of persons within its limits and jurisdiction from the wrongs and assaults of all other persons within the same. This is necessary to prevent civil and social conflict and bloodshed. If, however, government allows one class of persons within its limits and jurisdiction persistently to assail and spoil another, then, the injured class is remitted to its natural right of self-defense, and may use force enough for this purpose.
The application of these rules of law to the present case is clear. The government of the United States owes its Papago, Mexican and American residents in Arizona protection from Apache spoliation and assault. If such spoliation and assault are persistently carried on and not prevented by the government, then the sufferers have a right to protect themselves and to employ force enough for the purpose. It is also to be added that if the Apache nation or any part of it persists in assailing the Papagos, or American, or Mexican residents of Arizona, then if forfeits the right of protection from the United States, whether that right is the general protection which a government owes all persons within its limits and jurisdiction, or the special protection which is due to prisoners of war, as the Apaches killed on the 30th of April of last, are claimed to have been in the indictment.
Now gentleman, what is the evidence before you on this branch of the case. Have the Apache Indians and especially that portion of them quartered near Camp Grant on which the deadly assault, described in the indictment, was made on the 30th of April last, been persistently assailing and spoiling and murdering Papago, Mexican, and American residents of Arizona and has this been prevented by the United States? The evidence is quite full on this subject, and I submit to you whether it does or does not prove that the Apache nation and especially that portion of it, on which the assault charged in the indictment was made on the 30th of April last, were previously to that time, then, and are now in a state of hostilities towards all the Papago, Mexican and American residents in Arizona, including the defendants and such as they? Has this or has it not been continued for years? Has it been attended with loss of life and property of the classes mentioned? and has the government of the United States prevented this? Does or does not the evidence in the present case show that the clothing, arms and other property of murdered and despoiled Papagos, Mexican and American residents of Arizona, have been found in the possession of those on whom the assault charged in the indictment was made? that an obvious trail or Indian road leads from the place or places of this murder and spoliation direct to this encampment? and that these Indians before and since the assault charged in the indictment, have admitted their participation in this murder and spoliation? If this is shown, is there any evidence that the United States government has stopped this or had done so on the 30th of April last?
If you find the evidence proves these practices you will find whether it proves also that they were and are persistent. If you find that this murder and spoliation had been or were on the 30th of April last persistent; if you find that this murder and spoliation were not persistent, you will accordingly find one of the following conclusions:
First--That the attack charged in the indictment was or was not, a justifiable act of defensive or preventive hostilities: or,
Second--That is does or does not cast such reasonable doubt on the motive in making the assault charged in the indictment as shall render you unable to say whether the defendants were actuated by murderous malice in making such assault.
Accordingly as you find the affirmative or the negative of these conclusions, your verdict will be "not guilty" or "Guilty."
To aid you in the foregoing inquiries you will ascertain from the evidence in this case whether the government of the United States does or does not encourage combinations of citizens in Arizona for hostilities against the Apaches by furnishing them arms, ammunition and subsistence, and occasionally when practicable co-operating bodies of its own regular troops; and also whether, in pursuance of that policy of the government of the United States, its officers did not counsel and encourage the organization and enterprise, which led to the attack charged in the indictment, for any purpose, in any quarter and to what extent.
If you are not able to determine the guilt or innocence of the defendants from the foregoing classes of inquiries, by careful examination of the evidence, then you will further enquire whether the defendants were or were not impelled to make the attack charged in the indictment, by irresistible apprehension of danger to them and theirs from Apache attacks, or by such a sense of intolerable suffering as impelled them in spite of themselves to make the attack charged in the indictment or whether the defendants in making the attack charged in the indictment were impelled by any and what other motive not the malice before described, but irresistible and overwhelming.
In forming the conclusions above suggested, you will carefully examine the evidence in the case, and that alone.
An important inquiry in the case is whether the defendants were primarily attracted to the Indian quarters at Camp Grant, where the attack was made, by the Indian trail which they followed, and not by preconcert.
Gentleman, you will bear in mind, that you and you alone are to examine the evidence and determine its effect in the case under the law as I have declared it to you. I repeat, the immediate inquiry for you is: Were the defendants in the attack charged, actuated by malice, as I have described that conditions? Accordingly as you shall find they were or were not actuated by malice, your verdict must be "Guilty," or "Not Guilty."
If upon all the evidence there remains a reasonable doubt, in your minds, of the guilt of the defendants, you must acquit them. The reasonable doubt thus stated, is such want of conclusiveness in the evidence as shall render you unable to say whether the defendants are guilty or not. The doubt must exist in the evidence itself, and must be inseparable and insoluble by the most careful examination you can give it. The reasonable doubt which the law contemplates, is not some theoretical or possible conclusion of innocence apart from the evidence and the whole of it. It must be some doubtful quality of the whole evidence which you cannot eliminate by any effort of your reason.
I thus state to you the legal principles which govern this case, the conclusions of fact, to which they are to be applied, and suggest to you the modes of inquiry by which they are to be reached.
The evidence is your province and yours alone. Does it show guilty upon the law as thus declared to you, beyond a reasonable doubt, or does it not? You will now take the case under your sole consideration, say whether the defendants are "Guilty," or "Not guilty," and the Court will await your verdict.
John Titus, Judge, etc.