Opinion of the Court.

These cases, as was said in Appolos v. Brady, 4 U. S. App. 209; 49 Fed. Rep. 401, 403; "declare the test to be: Has the party made an absolute appropriation of property as a means for raising a fund to pay debts, without reserving to himself, in good faith, an equity of redemption in the property conveyed?"

Accepting, as we properly may, the law of Arkansas, upon the subject of assignments for the benefit of creditors and mortgages given to secure the payment of debts, to be as declared by the Supreme Court of that State, we are of opinion that the instrument executed by Malcolm to Waples, tested. alone by its words, is a deed of trust in the nature of a mortgage. It does not make an absolute appropriation of the property for the purpose of creating a fund for the payment of the debts named, but creates a lien to secure those debts, subject to an express reservation by the grantor of a right, within a specified time, to pay the debts, and have possession of such of the property as then remained unsold restored to him. Clearly, this instrument, upon its face, is nothing more than a security for certain debts-an equity of redemption remaining in the debtor. It did not make an absolute, fixed appropriation of the property for the payment of debts.

An effort was made to show that the parties really intended the instrument to operate as an assignment for the benefit of creditors. Without stopping to consider whether parol proof could be properly admitted for such a purpose, we content ourselves with saying, as did the Circuit Court of Appeals, that the proof wholly fails to show that either of the parties to the instrument intended it to be other than what it purports to be on its face, namely, a mortgage.

It is assigned for error that the trial court refused to submit to the jury certain special questions framed and presented by the plaintiff after the charge to the jury and before the argument. This contention rests upon certain provisions of the statutes of Arkansas relating to pleading and practice, (c. 119,) which are made part of the law of the Indian Territory by the above act of Congress of May 2, 1890, c. 182, 26 Stat. 81, 94. Those provisions are: "Sec. 5141. A special verdict is that by which the jury finds the facts only. It must present the

Opinion of the Court.

facts as established by the evidence, and not the evidence to prove them, and they must be so presented as that nothing remains to the court but to draw from them conclusions of law. Sec. 5142. In all actions the jury, in their discretion, may render a general or special verdict, but may be required by the court in any case in which they render a general verdict to find specially upon particular questions of fact to be stated in writing. This special finding is to be recorded with the verdict." The submission of special questions to the jury is, under the statute, in the discretion of the court. It was so held in Little Rock & Fort Smith Railway v. Pankhurst, 36 Arkansas, 371, 378. Independently of the statute of Arkansas, this court has held that "the personal conduct and administration of the judge in the discharge of his separate functions was neither practice, pleading nor a form or mode of proceeding" within the meaning of the practice act of June 1, 1872, 17 Stat. 197, now § 914 of the Revised Statutes, and that "the statute was not intended to fetter the judge in the personal discharge of his accustomed duties, or to trench upon the common law powers with which in that respect he is clothed." Mutual Accident Association v. Barry, 131 U. S. 100, 119.

One of the exceptions taken by the plaintiff at the trial was to the action of the court in not permitting Malcolm to state what he said to one Wiswell, within two days after the execution of the instrument in question, as to what he intended that instrument to be, whether a mortgage or a deed of assignment. What the mortgagor said to others, after the execution of the mortgage and delivery of possession under it, could not affect the rights of the mortgagee. Winchester & Partridge Mfg. Co. v. Creary, 116 U. S. 161, 165.

The bill of exceptions contains the following statement of what occurred in the trial court before the jury retired to consider their verdict:

"And after the court had delivered its charge, and plaintiff had saved its exception thereto, as above set forth, the case was argued to the jury by the attorneys of the respective parties, and when the argument had closed, it being near adjourning hour, it was agreed between the parties in open

Opinion of the Court.

court that in case the jury agreed upon a verdict during the recess of court they might seal their verdict and give it to their foreman, and report it at the meeting of court tomorrow morning. And at the meeting of court the following morning, being the 24th day of September, 1892, said jury returned into court, and upon being asked by the court if they had agreed upon a verdict, the foreman of the jury, Oaks, replied: 'We have.' And thereupon Sheimer, one of the jurors, arose and said: 'Your Honor, I agreed to a verdict last night, but would like to change my vote, if I can do so.' Whereupon the court replied: 'That is a very strange proceeding,' and ordered the jury to return to their jury-room; and one of the jurors thereupon arose and said if he was permitted to introduce evidence he could prove that Sheimer was not a competent juror. And thereupon A. G. Moseley, counsel for the interpleader, rose and said that we had agreed that the jury might seal their verdict and report it at the opening of the court this morning, and insisted that the jury should return the verdict they had given their foreman. And thereupon the court ordered the jury to take their seats in the box, and said that he would not permit any such conduct, and ordered the foreman to hand the sealed verdict to the clerk, and the clerk to read it. And after the clerk had read the verdict, plaintiff, by its counsel, requested that the jury be polled, and the court thereupon asked each juror separately if that was his verdict, and each of them answered Yes, sir,' with the exception of the juror Sheimer, who replied, in answer to the court's question, "Is that your verdict?' 'Yes, sir; I suppose so.' Plaintiff, by its counsel, excepted to the action of the court in not permitting the jury to again retire to their jury-room to again consider of their verdict, and also to the action of the court in directing the foreman of the jury to hand said sealed verdict to the clerk, and ordering the clerk to read it, and to the entering of said verdict as the verdict of the jury in the case. This exception was taken in open court before the jury had retired from the bar of the court or from their jury-box."

The bill of exceptions brings before the court all the evi

Syllabus.

dence, and it is clear that the trial court could properly have instructed the jury peremptorily to return a verdict for the defendant. Delaware, Lackawanna &c. Railroad Co. v. Converse, 139 U. S. 469, 472; Anderson County Commissioners v. Beal, 113 U. S. 227, 241; North Pennsylvania Railroad v. Commercial Bank, 123 U. S. 727, 733. In this view of the case the Circuit Court of Appeals well said that it was not error for the court to direct one juror to do what it ought to have directed all of them to do.

Other questions are presented by the assignments of error, but it is not necessary to discuss them. None of them furnish a ground for reversal. We perceive no error in the record, and the judgment of the Circuit Court of Appeals is

Affirmed.

ALLEN v. UNITED STATES.

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

No. 871. Submitted October 23, 1896. Decided December 7, 1896.

There is no error in an instruction that evidence recited by the court to the jury leaves them at liberty to infer not only wilfulness, but malice aforethought, if the evidence is as so recited.

There is no error in an instruction on a trial for murder that the intent necessary to constitute malice aforethought need not have existed for any particular time before the act of killing, but that it may spring up at the instant, and may be inferred from the fact of killing.

The language objected to in the sixth assignment of error is nothing more than the statement, in another form, of the familiar proposition that every man is presumed to intend the natural and probable consequences of his own act.

Mere provocative words, however aggravating, are not sufficient to reduce a crime from murder to manslaughter.

To establish a case of justifiable homicide it must appear that the assault made upon the prisoner was such as would lead a reasonable person to believe that his life was in peril.

There was no error in the instruction that the prisoner was bound to retreat as far as he could before slaying his assailant. Beard v. United States,

Opinion of the Court.

158 U. S. 550, and Alberty v. United States, 162 U. S. 499, distinguished from this case.

Flight of the accused is competent evidence against him, as having a tendency to establish guilt; and an instruction to that effect in substance is not error, although inaccurate in some other respects which could not have misled the jury.

The refusal to charge that where there is a probability of innocence there is a reasonable doubt of guilt is not error, when the court has already charged that the jury could not find the defendant guilty unless they were satisfied from the testimony that the crime was established beyond a reasonable doubt.

The seventeenth and eighteenth assignments were taken to instructions given to the jury after the main charge was delivered, and when the jury had returned to the court, apparently for further instructions. These instructions were quite lengthy and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. Held, that there was no error.

THE facts constituting the offence for which Allen was indicted are set forth in Allen v. United States, 150 U. S. 551, and 157 U. S. 675. The rulings passed upon in the present case are stated in the opinion of the court.

No appearance for plaintiff in error.

Mr. Solicitor General for defendants in error.

MR. JUSTICE BROWN delivered the opinion of the court.

This was a writ of error to a judgment of the Circuit Court of the United States for the Western District of Arkansas sentencing the plaintiff in error to death for the murder of Philip