In the circuit court of the United States for the western district of Arkansas, John Hicks, an Indian, was jointly indicted with Stand Rowe, also an Indian, for the murder of Andrew J. Colvard, a white man, by shooting him with a gun on the 13th of February, 1892. Rowe was killed by the officers in the attempt to arrest him, and Hicks was tried separately, and found guilty, in March, 1893. We adopt the statement of the facts in the case made in the brief for the government as correct, and as sufficient for our purposes:
'It appears that on the night of the 12th of February, 1892, there was a dance at the house of Jim Rowe, in the Cherokee Nation; that Jim Rowe was a brother to Stand Rowe, who was indicted jointly with the defendant; that a large number of men and women were in attendance; that the dance continued until near sunrise the morning of the 13th; that Stand Rowe and the defendant were engaged in what was called 'scouting,' viz. eluding the United States marshals who were in search of them with warrants for their arrest, and were armed for the purpose of resisting arrest. They appeared at the dance, each armed with a Winchester rifle. They were both Cherokee Indians. The deceased, Andrew J. Colvard, was a white man, who had married a Cherokee woman. He had been engaged in the mercantile business in the Cherokee country until a few months before the homicide. He came to the dance on horseback on the evening of the 12th. A good deal of whisky was drank during the night by the persons present, and Colvard appears to have been drunk at some time during the night. Colvard spoke Cherokee fluently, and appears to have been very friendly with Stand Rowe and the defendant, Hicks.
'On the morning of the 13th, as the party were dispersing, Colvard invited Stand Rowe and Hicks to go home with him, and repeated frequently this invitation. Finally he offered as an inducement to Stand Rowe, if he would accompany him home, to give him a suit of clothes, and a hat and boots. The urgency of these invitations appears to have excited the suspicion of the defendant in error, who declared openly that if Colvard persisted in his effort to take Stand Rowe away with him he would shoot him.
'Some time after sunrise on the morning of the 13th, about 7 o'clock, S. J. Christian, Benjamin F. Christian, Wm. J. Murphy, and Robert Murphy, all of whom had been at the dance the night before, and had seen there Colvard, Stand Rowe, and the defendant, were standing on the porch of the house of William J. Murphy, about 414 steps west from the house of Jim Rowe, and saw Stand Rowe, coming on horseback in a moderate walk, with his Winchester rifle lying down in front of him, down a 'trail,' which led into the main traveled road. Before Stand Rowe appeared in sight the men who were on the porch had heard a 'whoop' in the direction from which Stand Rowe came, and this 'whoop' was responded to by one from the main road in the direction of Jim Rowe's house. Stand Rowe halted within five or six feet of the main road, and the men on the porch saw Mr. Colvard and the defendant, Hicks, riding together down the main road from the direction of Jim Rowe's house.
'As Colvard and Hicks approached the point where Stand Rowe was sitting on his horse, Stand Rowe rode out into the road and halted. Colvard then rode up to him in a lope or canter, leaving Hicks, the defendant, some 30 or 40 feet in his rear. the point where the three men were together on their horses was about 100 yards from where the four witnesses stood on the porch. The conversation between the three men on horseback was not fully heard by the four men on the porch, and all that was heard was not understood, because part of it was carried on in the Cherokee tongue; but some part of this conversation was distinctly heard and clearly understood by these witnesses. They saw Stand Rowe twice raise his rifle and aim it at Colvard, and twice he lowered it. They heard Colvard say, 'I am a friend to both of you.' They saw and heard the defendant, Hicks, laugh aloud when Rowe directed his rifle towards Colvard. They saw Hicks take off his hat, and hit his horse on the neck or shoulder with it. They heard Hicks say to Colvard, 'Take off your hat, and die like a man.' (Pages 10, 27, 37, 44.) They saw Stand Rowe raise his rifle for the third time point it at Colvard, and fire it. They saw Colvard's horse wheel and run back in the direction of Jim Rowe's house, 115 or 116 steps. They saw Colvard fall from his horse. They went to where he was lying in the road, and found him dead. They saw Stand Rowe and John Hicks ride off together after the shooting.'