CHARGE TO THE JURY

in the case of
MICHIGAN v. HENRY SWEET
 

In the RECORDERS COURT
Detroit, Michigan

By
THE HONORABLE FRANK MURPHY

Thursday, May13, 1926

 [This is the charge to the jury that was read by Judge Frank Murphy on the morning of the last day of the second Sweet trial.  In keeping with the normal style of such charges, the language is highly technical and the logic rigorously structured; in all likelihood few jurors will have understood the charge fully.  However, the instructions do reflect some extremely important concessions that Judge Murphy had made to the defense, particularly as to the nature of the excuse of self-defense.  At issue is the extent to which the jury was legally allowed to consider the race and the prior racial experience of the Sweets as relevant factors in determining whether they acted reasonably when they fired on the crowd of whites outside their house.

 [On this subject, Judge Murphy says the following: "It is your province, gentlemen of the jury, to consider what were the circumstances which confronted the accused at the time, his situation, their situation, his race and color.  The actions and attitude of those who were outside the Sweet home all has a bearing on whether or not the sum total of the surrounding circumstances, as they appeared to him at the time, was such as to induce in a reasonable man the honest belief of danger."  By these words, Judge Murphy tells the jury that the defendant's race is a relevant factor they should take into account.  His wording opened the way for Darrow's expansive closing argument.

 [In addition to the excuse of self-defense, Judge Murphy also considers a second defense theory, that the defendants were justified in firing because they were repelling a riotous attack or resisting a felony that the crowd was about to commit against them.  Darrow weaves elements of this second theory into his closing; however, although the justification theory is legally distinct from the excuse of self-defense, Darrow himself makes little or no effort to distinguish them.

 [The jury took less than four hours to acquit Henry Sweet.

 [Frank Murphy (1890-1949) was to have an exceptionally distinguished judicial career that culminated in his appointment to the United States Supreme Court in 1940.

 [This text of Judge Murphy's charge comes from a transcript made by the NAACP of selected portions of the second trial.  A microfilm of the NAACP transcript is available in the Burton Historical Collection of the Detroit Public Library.  In editing the text, I have highlighted the basic elements of Judge Murphy's charge, enough to indicate clearly its structure.  I have also corrected minor spelling errors and altered the paragraphing in a few places.  Prof. Bruce W. Frier, Law School, The University of Michigan.]

CHARGE OF THE COURT

 THE COURT: Gentlemen of the jury, the information in this case charges that Ossian Sweet, Gladys Sweet, Joe Hack, Henry W. Sweet, Morris Murray, Otis O. Sweet, Charles P. Washington, Leonard C. Morris, William P. Davis, John Latting, and Hewitt Watson, late of said city of Detroit, in said Country, heretofore, to wit, on the 9th day of September, A.D. 1925, at the city of Detroit and County aforesaid, feloniously, wilfully and of their malice aforethought, did kill and murder one Leon Breiner, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.
 In addition to the information, the Prosecutor has filed the following bill of particulars:

           "The theory of the people in this case is that the defendants premeditatedly and with malice aforethought banded themselves together and armed themselves with the common understanding and agreement that one or more of them would shoot to kill, in the event, first, of threatened or actual trespass on the property wherein they were assembled, or, second, of the infliction of any damage, real or threatened, however slight, to the persons or property of them, or any of them.  Further, that deceased came to his death by a bullet fired by one of the defendants, aided and abetted by all of the others, in pursuance of their common understanding as above set forth.  Further, that such understanding and agreement was to commit an unlawful act, to wit, to shoot to kill without legal justification or excuse."
 The information, Gentlemen of the Jury, is based upon section 15192, of the Compiled Laws of the State of Michigan for the year 1915.  The section reads as follows:
          "All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree, and shall be punished" in the manner that is set forth in the statute.
 I consider it my duty to further read to you Section 15193 of the Compiled Laws of the State of Michigan for the year 1915.  The section reads as follows:
          "All other kinds of murder shall be deemed murder in the second degree, and shall be punished" in the manner that is set forth in the statute.
 Gentlemen of the jury, while eleven defendants are named in the information in this case, you are to consider and to pass judgment only upon the innocence or guilt of one defendant, that is, the defendant Henry Sweet.  Now, at the outset, I urge you to be calm in your judgment, and to summon the best judgment that you have, in order that in your deliberations you may be equally fair with the prosecution and with the defense.  Anything less that this will be less than your full duty.

 The accused in every criminal case is presumed to be innocent.  He comes into court surrounded by that presumption; and, because of it, it is the duty of the people, that is, the prosecution, to prove his guilt of each and every one of the essential elements of the crime with which he is charged, to the satisfaction of each and every one of you, by competent testimony, and beyond all reasonable doubt, before you are in a position where you may return a verdict of guilty against him.  When the prosecution has proved its case by competent testimony, and beyond all reasonable doubt, and to the satisfaction to each and every one of you, it then becomes your solemn duty to return a verdict of guilty, just as it remains your solemn duty to return a verdict of not guilty if the prosecution fails in this regard.

 The killing of one human being by another is called homicide.  The word "homicide" is a derivative from two Latin words, "caedo, - I kill"; and "homo, - a man;" the word "man" being used in the generic sense, a human being.  Manifestly, not every homicide is a crime.  A homicide may be, first justifiable; second, excusable; and third, felonious.

 When a homicide is justifiable or excusable, as I shall hereafter define these terms to you, a homicide is not a crime.  When felonious, as I shall hereafter define the term to you, it is a crime.  The first question to be answered by you is, did the defendant in this case commit a homicide, that is to say, kill a human being as charged in the information, Leon Breiner, within the corporate limits of the City of Detroit, on the day in question?  Obviously, if the homicide or death of Leon Breiner was brought about by some one other than the accused, or if the evidence in this case raises a reasonable doubt in your minds as to whether the homicide or the death of Leon Breiner was brought about by the accused, or some one with whom he was acting, it would be your duty to return a verdict of not guilty.

 The second question to be answered by you is, if the accused killed Leon Breiner, did he kill him, first, justifiably; second excusably; or, third, feloniously?

 As I stated above, only in the event of the last instance, namely, felonious killing, would his killing of Leon Breiner be a crime.  Hereafter, I shall explain the kinds of crime a felonious homicide may be.

 If you find that Leon Breiner was killed by the accused, your inquiry has only begun.  You must further inquire, was the killing, first, excusable, in defense of himself or of others; second, as justifiable, in repelling a riotous attack; and third, as justifiable in resisting a felony.

 As a preliminary to defining excusable and justifiable homicide, there is a general rule of law which I am bound to give you, which applies to all grounds of defense.  You might very properly ask in this or any other case whether the necessity for taking life in order to excuse or justify the slayer must be one arising out of actual or imminent danger, or whether he may act upon a belief arising from appearances which gives him reasonable cause for such belief that the danger is actual and imminent, although he may turn out to be mistaken.  Human life is not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion; but, the rules which make it excusable or justifiable to destroy it under some circumstances, are really meant to insure its general protection; and such rules, in order to be of any value, must in some reasonable degree, be accommodated to human character and necessity.

 Were a man charged with crime be held to have knowledge of all facts precisely as they are, there could be few cases in which the most innocent intention or honest zeal could justify or excuse a homicide.  The jury, by a careful sifting of witnesses on both sides, in cool blood, and aided by the comments of court and counsel, may arrive at a tolerably jut conclusion on the circumstances of an assault.  But, the accused, who is to justify himself, can hardly be expected to be entirely cool in a deadly affray, or in all cases to have great courage or large intellect, and cannot well see the true meaning of all that occurs at the time, while he can know nothing whatever concerning the designs of his assailants, any more than can be inferred from appearances.  And, the law, while it will not generally excuse mistakes of law, because every man is bound to know that, does not hold men responsible for a knowledge of facts unless their ignorance arises from fault or negligence.

 A criminal intent is a necessary ingredient of every crime; and therefore, it is held that, as the rule of law, founded on justice and reason is that an act does not make guilt unless the intent is clear, the guilt of the accused must depend on the circumstances as they appear to him.  In all cases where a party, without fault or carelessness, is misled concerning facts and acts, as he would be justified in doing if the facts were what he believed them to be, he is legally, as he is morally, innocent.  The accused, therefore, is to be judged according to the circumstances as they appeared to him at the time; and he or they who were with him were entitled to act upon the belief arising from appearances which gave him or them reasonable cause for it, that their danger was actual and imminent, although it might turn out thereafter that they or he were mistaken.

 The defendant, therefore, is to be judged under the circumstances as they appeared to him or to them at the time, being, however, held to the rule of reason and good faith in his belief based upon these circumstances.

 It is your province, gentlemen of the jury, to consider what were the circumstances which confronted the accused at the time, his situation, their situation, his race and color.  The actions and attitude of those who were outside the Sweet home all has a bearing on whether or not the sum total of the surrounding circumstances, as they appeared to him at the time, was such as to induce in a reasonable man the honest belief of danger.

 Judged by this rule which I have given to you, was the killing of Leon Breiner by the accused, if a killing, justifiable, excusable or felonious?  The only variety of excusable homicide which I need advert to is that which embraces the defense of one's own life, or that of his family, relatives or dependents, within those relations where the law permits the defense of others as of one's self.  Practically, as a\far as immunity from punishment is concerned, there is no distinction with us between excusable and justifiable homicide.  Neither an excusable or a justifiable homicide is punishable by the law.  But, there is a distinction between justifiable and excusable homicide, which will be convenient in order to illustrate the difference between the various instances of homicide in repelling assaults, according as they are or are not felonious.

 Homicide, in self defense, is excusable when it occurs in a sudden affray, or in repelling an attack not made with a felonious design.  It is excusable and not justifiable, because, occurring in a quarrel, it generally assumes some fault on both sides.  In these cases, the original assault not being made with felonious intent, and the danger arising in the heat of blood on one or both sides, the homicide is not excused unless the slayer does all which is reasonably within his power to avoid the necessity of extreme resistance, by retreating, where retreat is safe, or by any other expedient which is attainable.  He is bound, if possible, to get out of his adversary's way, and has no right to stand up and resist if he can safely retreat or escape.

 The rule governing excusable homicides committed in self defense against an attack not made with a felonious design is thus clearly stated.  The party assaulted must, therefore, flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit him; and it may be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm; and then, in his defense, he may kill his assailant instantly.

 Before a person can avail himself of the defense that he used a weapon in defense of his life, he must satisfy the jury that that defense was necessary; that he did all he could to avoid it; and that it was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him a reasonable apprehension that his life was in imminent danger.  If he used the weapon, having no other means of escape in such case, if he retreated as far as he could, he would be justified.  A man may defend his family, his servants or his master, whenever he may defend himself.  A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life.  But, here, as in the other cases, he must not take life if he can otherwise arrest or repel the assailant.  Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable.

 The essential difference between excusable and justifiable homicide rests not merely in the fact that the one was felonious, although pardoned, of course, while the other was innocent.  Those only were justifiable homicides where the slayer was regarded as promoting justice and performing a public duty; and the question of personal danger did not necessarily arise, although it does generally.

 It is held to be the duty of every man who sees a felony attempted by violence to prevent it, if possible; and, in the performance of this duty, which is an active one, there is a legal right to use all necessary means to make the resistance effectual.  Where a felonious act is not of a violent or forcible character, as in picking pockets and crimes partaking of fraud rather than force, there is no necessity, and therefore no justification for a homicide unless possibly in some exceptional case.  The rule extends only to cases of felony, and in those it is lawful to resist force by force.  If any forcible attempt is made, with a felonious intent, against any person or property, the person resisting it is not obliged to retreat, but may pursue his adversary, if necessary, until he finds himself out of danger.  Life may not properly be taken under this rule, where the evil may be prevented bu other means within the power of the person who interferes against the felon.  Reasonable apprehension of danger, however, is sufficient here, as in all other cases.

 It is also the settled law that private persons may forcibly interfere to suppress a riot or resist rioters, although a riot is not necessarily a felony in itself.  This is owing to the nature of the offense which requires a combination of three or more persons assembling together, and actually accomplishing some object calculated to terrify others.  Private persons who cannot otherwise suppress them, or defend themselves from them, may justify a homicide in killing them, as it is their right and duty to aid in preserving the peace; and perhaps no case can arise where a felonious attempt by a single individual will be as likely to inspire terror as the turbulent acts of rioters; and a very limited knowledge of human nature is sufficient to inform us that when men combine to do an injury to the person or property of others, of such a nature as to involve excitement and provoke resistance, they are not likely to stop at half-way measures, or to scan closely the dividing line between felonies and misdemeanors.  But when the act they meditate is in itself felonious and of a violent character, it is manifest that strong measures will be generally required for their effectual suppression; and a man who defends himself, his family or his property, under such circumstances, is justified in making a complete defense as is necessary.

 Accordingly, if you find, from the facts in this case, that the accused fired a shot that brought about the death of Leon Breiner, and that it was fired under an honest and and reasonable belief, based on the circumstances as they appeared to him and to them at the time, that he or they were in danger of losing his or their lives, or suffering great bodily harm, or were resisting a forcible and violent felony in the only effectual manner that it could be resisted, the shooting would be justifiable, and the defendant would not be guilty.

 If the defendant killed Leon Breiner, and you find his act was not excusable or justifiable, under the rules which I have heretofore stated, you will then be required to determine if the killing of Leon Breiner would be a felonious homicide; and felonious homicide is one in which the law recognizes neither legal excuse nor justification.  Felonious homicides are divided into three grades: Murder of the first degree, murder of the second degree, and manslaughter.

 Murder occurs where a person of sound mind and memory kills and reasonable creature in being, with malice, propense, or aforethought, either express or implied.  Under our statute in this state, murder is divided into two classes, known as murder in the first degree, and murder in the second degree.  Murder in the first degree occurs where the killing is effected by poisoning, lying in wait, or any other premeditated or deliberate killing, or when it is committed in the perpetration or attempt to perpetrate the crime of arson, robbery or burglary.  All other murders are of the second degree.  Murder in the first degree may be committed in any one of the various ways provided by the statute as I have given them to you; but the distinguishing element between murder of the first degree and murder of the second degree, with which you are concerned in this case, is whether the murder, if there was a murder, was deliberate and premeditated.  By premeditation is meant a fixed design in the mind of the accused to commit the crime of murder, that is, that he had designed it.  The length of time is immaterial, but in some time before the fatal shot was fired.  The length of time is immaterial, be it some time before the fatal shot was fired.  The accused must have murder in his mind, and design to kill his victim, - that is, formed a definite purpose to kill some person pursuant to a fixed design.  That would be premeditation.  That is, to constitute murder in the first degree, the killing must be willful and deliberate; it must be done with malice, and must have been premeditated.

 To constitute murder in the second degree, the killing must be done with malice, and must be willful and deliberate, but not premeditated.  In other words, the same elements must be shown to prove murder in the second degree as murder in the first degree, excepting that in first degree murder, the killing must be premeditated.

 Malice, as I have used the term here, may be either express or implied.  Express malice occurs where one, with a deliberate purpose, kills another.  Malice is implied from any deliberate or cruel act against a man, however sudden.  Malice is not confined to any particular ill-will of the murderer towards his victim, but is intended to denote action flowing from a wicked and corrupt motive; a thing done where the act is attended by such circumstances as carry in them the plain indication of a heart bent on mischief, regardless of social duty.

 Malice aforethought means malice existing any time before the act so as to be its moving cause.  In murder, the real test of malice is to be found in the presence or absence of adequate cause or provocation to act with violence.  Where a deadly weapon is used to do a killing, malice will b e implied, unless the provocation which results in the killing is very great.

 Below murder in the first degree and murder in the second degree is the crime of manslaughter.  Manslaughter differs from the crime of murder, in that it is not the result of malice, but is the result of wrath or anger superinduced by provocation, and without sufficient cooling time having elapsed for the wrath to have subsided and reason to have resumed its sway.  As I have already stated, however, where the killing is done with a deadly weapon, the law implies malice, unless such killing is the result of considerable provocation.

 To summarize briefly what I have just explained to you in detail: If you are satisfied beyond all reasonable doubt, from the testimony in this case, that the accused killed Leon Breiner without legal justification or excuse, and as the result of cruelty or wickedness of heart, or recklessness of disposition, the crime would be murder.  If, with premeditation, it would be murder in the first degree; if without premeditation, but with malice, it would be murder in the second degree.  It would be manslaughter if done without legal justification or excuse, as I have explained them to you, without malice, but upon reasonable provocation and without sufficient time elapsing for passion to cool and reason to resume its sway; or, if you are satisfied, beyond all reasonable doubt, that the accused killer of Leon Breiner, either in the doing of some unlawful act, or in the doing of some act that could not but be attended with manifest danger of hurt to the person of some human being, or be of such a nature that it could not be done without a manifest hazard of life.

 Now, while it is your duty here to determine the innocence or guilt of Henry Sweet alone, it is my duty to make clear to you the relative criminal liability, if any, of each of the several defendants.  Of course, it goes without saying that every man is responsible to the law for his own acts.  He may also become criminally responsible for the criminal conduct of another.  Our statute provides that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, although not present, may hereafter be indicted, tried and punished as principals.  Hence, it follows that if one of the defendants shot and killed Leon Breiner without legal justification or excuse, as I have defined them to you, he would be guilty of a felonious homicide in so doing, because of his own act; and any and all others who aided and abetted him in the commission of that felonious homicide would be equally guilty with him.  Aiding and abetting the commission of a crime consists of encouraging, counselling and assisting the principal who commits the crime in the commission of it.  While the guilt of each defendant is personal and individual, and while you are asked to decide here solely the guilt of the defendant Henry Sweet, it nevertheless is the law that each defendant is responsible not only for his own criminal conduct, if any, but also for the criminal conduct of any other defendant whom he aided or abetted to commit the crime charged, if he himself committed it, and also if he aided and abetted some other defendant in doing it.  In other words, his guilt, as an actual perpetrator of the crime or as an aider or abetter of the perpetration of the crime by another, is the same.  Therefore, before you can find Henry Sweet, this defendant, guilty, you must be satisfied beyond all reasonable doubt that, without legal justification or excuse, he shot to death Leon Breiner, or aided and abetted the person who did shoot to death Leon Breiner, such person not having any legal justification or excuse, as I have defined them to you.  In other words, this defendant cannot be convicted unless you are satisfied beyond a reasonable doubt that such defendant, by himself, without legal justification or excuse, killed Leon Breiner, or aided and abetted the killing of Leon Breiner by another person, such person not having any legal justification or excuse as I have defined them to you.  The mere presence at a homicide and knowledge of its commission cannot in and of itself make a person guilty.

 It is the claim of the defense in this case that the State has failed to prove, beyond a reasonable doubt, that Henry Sweet or anyone of the accused, fired the shot that killed Leon Breiner, and that whatever shooting was done from the house of Dr. Sweet was in the defense of that home, and of the persons inside, and not to resist a forcible felonious assault on their persons and property.  Dr. Sweet had the right, under the law, to purchase and occupy the dwelling house on Garland Avenue.  Under the law, a man's house is his castle.  It is his castle, whether he is white or black, and no man has the right to assault or invade it.  The negro is, now by the Constitution of the United States, given full citizenship with the white man, and all the rights and privileges of citizenship attend him wherever he goes.  Our Supreme Court has said, all citizens, whether white or black, are equal before the law.  The white man can have no rights or privileges that are denied to the black.  Socially, people may do as they please, if they do it within the law.  The whites may associate together and exclude the blacks, or the blacks may associate together and exclude the whites, from their dwelling houses and private grounds, and from their own private activities.

 Now, gentlemen, the accused in a criminal case, may take the stand or may neglect to do so.  In this case, a co-defendant, Dr. Sweet, not on trial as this time, has taken the stand; and it is your duty to give every fair and conscientious consideration to his testimony.  You should apply the same tests of common sense and reason to determine the truth or falsity of his testimony that you will apply to determine the truth or falsity of the testimony of any witness who takes the stand.  It is your privilege, if you are so impressed by his testimony, to accept his theory and his statements as correct, and disregarding all of the other testimony in the case, to acquit the defendant, Henry Sweet.  On the other hand, because he is one of the defendants, does not mean that you should give any greater weight or credibility to his testimony than you would to the testimony of any other witness.  You should, as I have previously stated, apply the same tests of common sense and reason to determine the truth or falsity of what he tells you, that you would to determine the truth or falsity of the testimony of any other witness, having in mind that he is one of the defendants in this case.  As I mentioned a moment ago, the accused in a criminal case may take the stand or neglect to do so.  This is the law of this state.  It is his right to make an election.

 The defendant, Henry Sweet, has not taken the stand; and, because he has chosen not to do so, the Prosecutor may not comment upon it.  Counsel for the defense may not comment upon it; and I cannot, except to explain the law to you.  Under the law, he may make his own choice or selection; and because it is his right, under the law, if he invokes it, you have not any right to guess or speculate why, or to gather any inference against him because he has not taken the stand.  Obviously, no prejudice should accrue to one who has exercised a right the law for sound reasons grants to him.  It is the duty of the court to instruct you as to the law, and it is your duty to accept the instructions of the court in that regard; but the responsibility rests upon you, and you alone, to determine what the facts are in this case.

 In seeking to determine the facts, you have no right to go outside the testimony.  You are bound absolutely by the testimony of the witnesses who have appeared here on the stand.  By that I do not mean of course that you are bound to accept everything that every witness has said as true.  It is for you to determine what testimony is true; and if you do not believe it all, then what testimony is false.  It goes without saying that any testimony that you do not believe to be true, you should cast aside as mere surplusage, and it is of no consequence whatsoever.  It is also your function to determine what weight or credibility you should attach to the testimony of each witness, taking into consideration the opportunity the witness has had to know the facts about which he or she seeks to testify here on the stand; and, taking into consideration the demeanor of the witness on the stand, the reasonableness of the story that is told, whether the story is conflicting with other testimony that the same witness has given, or other testimony in the case that you believe to be true, whether it is corroborated by other testimony that you believe to be true.  These are some of the tests that will occur to you in seeking to determine what weight or credibility you will attach to the testimony of each witness who has appeared here before you.

 You have a right to take into consideration any interest that any witness has in the outcome of the case, in determining what weight and credibility that you will attach to the testimony of the particular witness.  You have a right, if you find that a witness has deliberately testified falsely as to any material facts, to disregard the testimony of that witness in its entirety, or you may disregard it in part and believe it in part.  In other words, gentlemen, as I have already said to you, you will determine from the testimony of the witnesses what the true facts are in this case, and then you will apply the law to the facts as I have given you the law, and you will thereby arrive at your conclusion.

 I have been requested by the prosecutor to instruct you as follows in regard to certain testimony, and I give you the following instructions:

 Certain testimony has been introduces by the defense, showing that, Dr. Sweet had witnessed and had heard of occurrences in Detroit and elsewhere, in which it was claimed that the rights of negroes had been violated by white men, or in which negroes and white men were involved in racial outbreaks.  This testimony was not offered, and is not competent, to show whether or not such circumstances actually happened, and you are in no way concerned with the question of the truth of the reports which Dr. Sweet claims to have received.  If you find that they were repeated to Henry Sweet, in substantially the same form as you have heard them from Dr. Sweet here, then you may consider such disturbances only in determining what effect, if any, they had upon the mind and mental make-up of the defendant.

 One cannot justify the killing of an assailant on the ground of self-defense, if it is done through more fear or excitement, or under circumstances which, as they appeared to him at the time, were not sufficient to induce in him a reasonable belief that he was in danger of bodily harm.

 Counsel for the defense in this case have submitted several requests to charge, and the following I give to you:

 The jury is instructed that Ossian H. Sweet had the right to purchase the property at 3905 Garland Avenue, in the city of Detroit, and to be free from interference and intimidation in its possession.  He had the same right that he would have in case he were white.

 The jury is instructed further that every man has the right to defend the possession of his home and his person, and the persons of his family or his dependents.  In this connection, if he deems it necessary, he has the right to call in his friends or any other person or persons to aid him in the defense of such home or the persons occupying the same.  He has the right, in defense of his home or persons therein, to defend himself and the occupants against invasion, and every other person present in such house has the right to defend the owner and his home and the occupants of the dwelling.  The defendant in this case had such right.  And if, under all of the circumstances in the case, and considering the defendants and their condition and feelings at the time, a reasonable man placed in the position in which the defendant was placed, believed, on account of threats or circumstances, that it was necessary for him to use force in defending his home or person, and such belief arising from the appearances confronting him and them in the house, gave him and them reasonable cause for it, he and they had the legal right to use such force.  And, even though the jury should believe, as a matter of fact, that they were not in imminent danger from any people there assembled, or from any show of force or intimidation, still they had a right to use force if they honestly, under all of the circumstances of the case, believed that they were so menaced.

 The jury is instructed that, to constitute a riotous assemblage, it is not necessary to show any agreement between the members of such assemblage to do a specific act.  It is only necessary to find that they came together for a common purpose, to accomplish an illegal result, by means of intimidation, coercion, force or violence, and that they or some of them threw stones or other missiles on the house, or broke the glass in the house of the defendants.

 The jury is instructed that, to constitute a right of self-defense, or the defense of home, it is not necessary that there shall be real danger of life or injury to the home.  It is only necessary that the defendant should act in good faith and under reasonable apprehension of danger.  The defendant had a right to act in such manner as a reasonable person would act under all of the circumstances of the case.  And in considering the question of the conduct of a reasonable person, under such circumstances, the jury should take into consideration the conduct of a reasonable person under such circumstances.  They should take into consideration the condition of the defendant in the case, the hostility, if any, that existed against them; the appearance of menace by the congregation of people, if any there was; the knowledge that the defendants had of the treatment of people of their race in the City of Detroit, and in other parts of the United States; the length of time that any considerable number of people had acted with a show of menace, hostility or force around the house of the defendant Sweet, if any such menace existed, and all of the circumstances surrounding the case.

 You are instructed that, in determining the issues of this case, you are not to be governed by the number of witnesses called on each side; you are to consider the testimony of each witness by itself.  You are to consider the prejudice, if any, that is shown in their testimony, whether they seemed to be candid and fair and to be telling the truth.  You are to consider all of the facts and the circumstances of the case, to arrive at the credibility of the various witnesses who have given testimony in this case.

 You are instructed that neither in the testimony of witnesses, nor in any other facts in this case, are you to disregard any witness or to render any judgment or inference on account of the color or race of the defendant or any witness in the case.

 You are instructed that, under the statutes of Michigan, it is provided:

          "Every person who shall wilfully and maliciously destroy or injure any house, barn or other building, of another, or the appurtenances thereof, if the damage resulting from such injury shall exceed twenty-five dollars, shall be punished by imprisonment in the County Jail not more than one year, or by a fine not exceeding Five hundred dollars, or by both such fine and imprisonment; and if the damage done shall [not] exceed Twenty-five dollars, he shall be punished by a fine not exceeding One hundred dollars, or by imprisonment in the County Jail not exceeding three months, or by both such fine and imprisonment."
 You are instructed in this case that if Ossian H. Sweet and Henry Sweet, and the occupants of his house, had reason to believe, from the appearances and the conduct of the people assembled in the vicinity of the house, if any such assemblage there was, that said members of said assemblage were about to wilfully and maliciously destroy or injure his house, or other buildings and inflict thereon damages exceeding twenty-five dollars, then the defendant had the right to resist any threatened invasion or injury to his premises, even though it involved the taking of life, if, under all of the circumstances of the case, they had reason to believe and did believe that such danger was real or imminent.  However, life may not properly be taken under this rule where the evil may be prevented by other means within the power of the person who interferes against the felon.

 You are further instructed that if you believe from the evidence that the defendant or defendants had knowledge of other instances of recent occurrences in the city of Detroit, where damages to dwelling houses and buildings to the extent of more than twenty-five dollars had been done by mobs or assemblages of people against the property of colored people, then you have the right to consider such knowledge or belief upon the part of the defendant as affecting the condition of mind of such defendant as to whether he or they had a right to apprehend or fear the imminent danger of destruction or damage to it to an amount exceeding Twenty-five dollars.

 You are instructed that each of the defendants, as well as Henry M. Sweet, was entitled to take an interest in the life and safety of other defendants, and in the protection of the property of the defendant Ossian H. Sweet; and, in this, the defendant had the right to act in such a manner as seemed to him, under all of the circumstances in the case, was necessary for the protection of life or home.  If you find that on the night of September 9th, in the vicinity of Dr. Sweet's home, twelve or more persons armed with clubs or other dangerous weapons, or thirty or more, whether armed or not, were assembled for the purpose of violently ejecting Dr. Sweet from his home, or for the purpose of intimidating him by threats so that he would leave his home, then such persons were engaged in an unlawful assembly or riot, even though there was no loud tumult or great confusion.  There is some testimony introduced in this case that persons in the crowd had stones.  It is for you to find whether there were persons armed with stones, and whether they were dangerous.  If, on the night of September 9th, there were gathered in the vicinity of Dr. Sweet's home, twelve or more persons with clubs and other dangerous weapons, or thirty unarmed, for the purpose of compelling Dr. Sweet to leave his home, through threats of such persons, or for the purpose of violently ejecting him from his home, then you will find that such persons were unlawfully assembled.

 You are instructed that the guilt of the defendant, Henry Sweet, cannot be established by circumstantial evidence unless all of the necessary facts and circumstances pointing to guilt are not only consistent with such theory of guilt, but are inconsistent with any other rational theory.  To justify a verdict of guilty on circumstantial evidence alone, the necessary circumstances must be inconsistent with any reasonable theory of innocence, and every fact necessary to the conclusion of guilt must be distinctly proven by competent evidence.  And unless you are satisfied beyond reasonable doubt that it has been so proven in this case, you must find the defendant not guilty.

 There has been some testimony put in in this case as to the good character of the accused, and as to his reputation as a peaceful and law abiding citizen.  Good character is an important fact with every man, and never more so than when he is put on trial charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime.  There are cases where it becomes a man's sole dependence, and yet may prove sufficient to outweigh the evidence of the most positive character.  The most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave.  Good character may not only raise a doubt of guilt which would otherwise not exist, but it may bring conviction of innocence.  In every criminal trial it is a fact which the defendant is at liberty to put in evidence, and the jury has a right to give it such weight as they think it is entitled to.

 Now, under our law, the defendant in every criminal case is presumed to be innocent, until his guilt is established by competent testimony beyond all reasonable doubt.  That presumption of innocence starts with him as the very inception of the case, and continues until such time as you and each of you in your jury room determine that he is guilty.  When you are satisfied, beyond all reasonable doubt, by the testimony in the case, of his guilt, then the state has overcome that protection which the law gives him.  But up to the time you are so satisfied, he is presumed to be innocent.  When I say that the People must prove their case beyond all reasonable doubt, I do not mean by that, of course, beyond all possible doubt.  Now, a reasonable doubt is a doubt based upon reason and common sense.  It is a fair, not a vain, captious or imaginary doubt, but one growing out of the evidence or the lack of evidence in the case.  It has been said that it is such a doubt that, after a careful review of all the testimony in the case, you cannot say that you have an abiding conviction amounting to a moral certainty of the defendant's guilt.  If you have such a doubt as that, it is your duty, under the law, to acquit him.  If you have no such doubt as that, then it is your duty to convict him.

 Now, gentlemen of the jury, some evidence has been offered here of statements made by the defendant at the time of his arrest; and I charge you in relation thereto, that such statements, at the time of the arrest, are to be received with great caution, for; besides the danger of misapprehension of a witness, or the misuse of words, the failure of a party to express his own mind, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is often expressed by the calamity of the situation, and that he is often influenced by motives of hope or fear to make such statements.

 You have no right to draw upon any prejudice that you may have, or upon any passion, upon any sympathy, either for the respondent in this case, or for the deceased, or for anybody else.  It is your duty to weigh, and analyze and consider what the testimony is in this case, considering carefully the testimony of each witness, and determining from all of the testimony what the true facts are.  Now, gentlemen of the jury, because of the particular facts surrounding this case, and because of all that has been said and argued here, I consider it my duty to especially caution and warn you against prejudice or intolerance in your deliberations.  I urge you, gentlemen, to summon the best judgment you have, and your finest sense of conscientious duty.  You must strive to be equally fair with the prosecution and with the defense.  Anything less than this will be less than your duty under the law.  If you permit passion or prejudice, or hate or the like, to enter into your deliberations, reason will depart, and that calm, judicial and fair judgment necessary in doing justice, will not prevail.  You will remember, gentlemen, that under the Constitution of the country, as well as the Anglo-Saxon conception of justice, all men are equal before the law.  Real justice does not draw any line of color, race, or creed or class.  All charged with crime, rich or poor, humble or great, white or black, are entitled to the same rights and the same full measure of justice.  It may be possible, human as we are, we cannot create perfect justice; but the ideal is plain, and it is our duty to strive and reach for it as sincerely as it is in our power to do so.

 It is an important responsibility that is yours in this case; and, in order that right will be done, and that you will be fair both to the prosecution and the defense, I again urge you to summon the best judgment and the best conscience that you possess.
 Now, when you come to your deliberation, keep in mind that if you become angry or excited, that you will have difficulty in arriving at a verdict.  Do not be hasty.  Be calm and deliberate.  Try to be understanding of one another.  Try to reason with one another.  Be tolerant of each other's viewpoint.  In this manner you will be able to be better reason your way out of any difficulty.  Remember, gentlemen, you are answerable to no one for your verdict.  The prosecutor may not determine the facts here.  Counsel for the defendant may not determine the facts.  I have not the right to determine the facts.  The responsibility of determining true facts in this case rests squarely upon your shoulders.  And, when you have done this, and done it in a conscientious manner, you are answerable to no one.  No one has the right to question you about it.  You are bound to do your suty, to your own conscience.  And when you have done that, you are through.

 Now, you may return one of four verdicts, as to the defendant Henry Sweet.  If you find, on the date in question, within the corporate limits of the city of Detroit, the accused did kill and murder Leon Breiner, with malice aforethought, and that it was premeditated, the verdict would be guilty of murder in the first degree.

 If you find, on the date in question, within the corporate limits of the city of Detroit, the accused did kill and murder Leon Breiner, but without premeditation, or without justification or excuse, it would be murder in the second degree.

 If you are satisfied, beyond all reasonable doubt, that the accused killed Leon Breiner, within the corporate limits of the city of Detroit, on the date in question, but that it was not premeditated, and was not with malice aforethought, but was the result of reasonable provocation, or because of some unlawful act, or some act that could not but be attended without manifest danger or hurt to the person of some human being, or be of such a nature that it could not be done without manifest hazard of life, then you would return a verdict of guilty of manslaughter.

 If you believe that the accused in this case acted in self defense, as I have defined and explained it to you, or, if the defense in this case raises a reasonable doubt of guilt in your minds, it will be your duty to return a verdict of not guilty.
 

 ________________

Sweet Transcript Page
Darrow Summations Page
Sweet Trial Homepage