MOORE
v.
UNITED STATES.

*59 No appearance for plaintiff in error.

Mr. Assistant Attorney General Whitney for defendants in error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

The testimony on behalf of the prosecution tended to show that Charles Palmer, who had been seen alive about 12 o'clock, was found lying dead in the road in Sandy Creek bottom, about two miles from his home, at 4 o'clock of the same day. About three or four hundred yards from where the body was found, the defendant, Tom Moore, was seen by two witnesses about 2 or 3 o'clock of the same day, coming toward them and carrying a Winchester gun. When he saw them he turned off *60 at a fast walk out of sight. The wounds in Palmer's body were made with a Winchester gun or a pistol. Defendant was a person of no means, living with his brother, Nelson Moore, about a quarter of a mile from Palmer's, for whom he had been at work, clearing his land. Palmer's land was rented from an Indian. This land was also claimed by a full-blooded Choctaw woman named Lizzie Lishtubbi. Four days before the murder defendant Moore married this woman. He had previously boasted that he was going to marry the woman and get the land; "that she was old and would not live long, and he would get a good stake." One of the witnesses told him that he would have trouble over it, as Charles Palmer was about the gamiest man in the Territory. He replied: "I am some that way myself." As he started to leave, he said: "I may not get to marry the widow; and if I do not, if you give me away, I will kill you." But the witness thought it merely a good-natured remark, as he was laughing at the time.

We think it was within the discretion of the court to admit the testimony in dispute of Kitty Young. As intimated in the case of Alexander v. United States, 138 U.S. 353, where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused in the minds of the jurors. There are many circumstances connected with a trial, the pertinency of which a judge who has listened to the testimony, and observed the conduct of the parties and witnesses, is better able to estimate the value of than an appellate court, which is confined in its examination to the very words of the witnesses, perhaps imperfectly taken down by the reporter. It was said by Mr. Justice Clifford, in delivering the opinion of this court in Castle v. Bullard, 23 How. 172, 187, that "whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to testimony on the ground of irrelevancy are not favored, for *61 the reason that the force and effect of circumstantial facts usually, and almost necessarily, depend upon their connection with each other." And in Hendrickson v. People, 10 N.Y. 13, 31, it is said that "considerable latitude is allowed on the question of motive. Just in proportion to the depravity of the mind would a motive be trifling and insignificant which might prompt the commission of a great crime. We can never say the motive was adequate to the offence; for human minds would differ in their ideas of adequacy, according to their own estimate of the enormity of crime, and a virtuous mind would find no motive sufficient to justify the felonious taking of human life." See also Shailer v. Bumstead, 99 Mass. 112, 130; Commonwealth v. Coc, 115 Mass. 481, 504; Commonwealth v. Pomeroy, 117 Mass. 143; Murphy v. People, 63 N.Y. 590, 594; Kennedy v. People, 39 N.Y. 245; People v. Harris, 136 N.Y. 423; Commonwealth v. Abbott, 130 Mass. 472.

Even conceding that the prosecution had shown a motive for the murder of Palmer in the fact that he was in possession of land to which defendant's wife also had a claim, the further facts that Palmer was known by the defendant to have been down in the bottom where Camp had been suspected of being murdered, taken in connection with the blood found at the house jointly occupied by himself and the Moores, the report of a gun heard in the direction of the house, the wagon tracks leading toward the bottom where he was thought to have been murdered, and the subsequent return of one of the Moores with Camp's team and clothes, and wearing his boots, were such as were calculated to excite defendant's suspicion that Palmer was there for the purpose of investigating the circumstances of Camp's death and his connection with it.

The fact that the testimony also had a tendency to show that defendant had been guilty of Camp's murder would not be sufficient to exclude it, if it were otherwise competent. 1 Greenl. Ev. § 3; Farris v. People, 129 Illinois, 521; People v. Harris, 136 N.Y. 423.

The exception to the denial of the motion for a new trial upon the ground that the verdict was not supported by the amount and character of evidence that is required by law, was *62 untenable under the repeàted rulings of this court. Crumpton v. United States, 138 U.S. 361, 365; Wilson v. Everett, 139 U.S. 616, 621; Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 134.

There was no error in the rulings of the court below, and the judgment is, therefore,

Affirmed.