Henry Starr was a Cherokee outlaw from Indian Territory whose single homicide case reached the Supreme Court of the United States twice. On December 13, 1892, in the Cherokee Nation north of Nowata, he killed Floyd Wilson, a posseman riding with a deputy marshal who carried a federal warrant for Starr's arrest. The federal court at Fort Smith, Arkansas, convicted him of murder in 1893 and sentenced him to death. The Supreme Court threw that verdict out in May 1894 because of the way the trial judge had charged the jury. A second jury convicted him, a second death sentence followed, and in January 1897 the Supreme Court reversed again. By then the judge who had twice sentenced him was dead. Starr pleaded guilty to manslaughter and received fifteen years.
He did not serve them. A grant of presidential clemency released him in 1903, and he went on to prison terms in Colorado and Oklahoma for bank robbery, and a death in Harrison, Arkansas, on February 22, 1921, four days after a failed bank robbery in that town. The homicide that put him before the Supreme Court remained the only one for which he was ever convicted.
Starr was born on December 2, 1873, near Fort Gibson in the Cherokee Nation, in what was then Indian Territory and is now Oklahoma. He was Cherokee by descent.
The law that governed his life as a young man came from Fort Smith. The United States District Court for the Western District of Arkansas, sitting there, held jurisdiction over Indian Territory, except for crimes committed among Indians themselves. Its cases ran through a fixed sequence: a complaint, an arrest warrant, the federal jail, a hearing before a United States commissioner, a grand jury, a trial before a jury drawn from Arkansas, and sentence.
Starr first passed through that system as a teenager. In 1889, at sixteen, he was charged with bringing liquor into Indian Territory. In 1891 he was arrested on a charge of stealing a neighbor's horse. Both times he was taken to Fort Smith in chains, and both times he was acquitted.
The charges that followed were not resolved so easily. In December 1891 a warrant was issued for him on a charge of horse theft. On November 18, 1892, a United States commissioner for the Western District of Arkansas issued another warrant for the arrest of Starr and others, on a charge of larceny.
The man who died in December 1892 had spent most of the previous decade in the service of the Fort Smith court. He was born in Athens County, Ohio, and received his first commission as a deputy United States marshal for the Western District of Arkansas in 1884. Over the years that followed he made arrests in both Arkansas and Indian Territory, spent a few years away from the federal court in Fort Smith itself, and came back to it as a deputy around 1890.
In November 1892 a deputy marshal who was also a detective for an express company asked him to help bring in Starr. He agreed to serve as that deputy's posse and was appointed to act as a deputy marshal for the purpose. The two men spent the following weeks in the northern Cherokee Nation. The Supreme Court later described his part in the plainest terms: he had been summoned as a posse member to aid the deputy in executing the November 18 warrant.
On December 13, 1892, near Wolf Creek, north of Nowata, the two lawmen came up with Starr. The deputy later testified that he had instructed his posseman to try to take Starr without killing him. Starr killed him and escaped.
Starr was not taken for more than six months. In early July 1893 he was arrested in Colorado Springs, Colorado, and returned to Fort Smith for trial.
The charge was murder. The indictment did not depend on the robberies or the larceny warrant, but the warrant mattered all the same, because the defense built its case on it. Starr claimed that he had acted in self-defense and that he had not known the man pursuing him was an officer of the law. Whether he knew, or should have known, the posseman's official character, and whether the warrant had been valid at all, would occupy the courts for the next four years.
The jury found him guilty of murder. On November 4, 1893, the court sentenced him to death and set the date of execution for February 20, 1894. A conviction for murder in that court carried a mandatory death sentence. Starr's counsel took the case to the Supreme Court on a writ of error, which stayed the sentence.
The Supreme Court decided the appeal on May 14, 1894, in an opinion by the Chief Justice. The opinion recited that Starr had been convicted of the murder of the posseman, described as "a white man, and not an Indian," at the Cherokee Nation in the Indian Territory on December 13, 1892. The words mattered because the Fort Smith court's jurisdiction over the Territory did not reach crimes committed among Indians.
The defense first attacked the warrant. It had been styled as issued under seal, but no seal had been affixed. The Court rejected the argument. At common law, it held, a seal was not required unless the issuing magistrate had a seal of office or a statute demanded one, and no statute did here. The warrant was valid.
The jury charge was another matter. The trial judge had told the jury that Starr's right of self-defense was limited if he had prevented the posseman from announcing his official identity. The Court held that this qualification went too far. If Starr "had no knowledge, was not informed, and was not chargeable with notice" of the posseman's mission or official character, the question was what he knew, and the judge's qualification did not justify narrowing his claim.
The judge had also borrowed language from an earlier self-defense case about a man engaged in the lawful pursuit of his business, and applied it to Starr's earlier forfeiture of bond and possible flight from arrest. The effect, the Court found, was to suggest that Starr was not entitled to claim self-defense at all, an error likely to have prejudiced him. The judge had told the jurors that a man claiming self-defense "must enter upon it with clean hands and a pure heart." The Court rejected that as a condition of the right.
The last ground went to the judge's conduct of the trial. He had expressed strong opinions on the facts and used argumentative, inflammatory language about the authority of the government. The Court observed that "the influence of the trial judge on the jury is necessarily and properly of great weight," which was exactly why his words had to be measured. It found his language "tended fatally to mislead," and it expressed its "disapprobation of this mode of instructing and advising a jury." The judgment was reversed and the case remanded with directions to grant a new trial.
Starr went back to the Fort Smith jail to await retrial. He was there on the night of July 26, 1895, when another prisoner led an escape attempt in which a guard died. Starr acted as a peacemaker, calming the guards and then talking the prisoner into surrendering. The episode would matter to him years later.
The second jury also convicted him of murder, and the court again sentenced him to death. His counsel again took the case to the Supreme Court.
This time the defense attacked the warrant from a new angle. The commissioner had signed as a commissioner of the "U.S. Court," and the defense argued that the statute required a commissioner of the circuit court. The district court at Fort Smith had exercised circuit court powers, and a circuit court had been created in 1889. The Court held that commissioners appointed by the district court remained in office, at least de facto, after the change, and that the style of the signature did not imply any lack of authority. The objection to the supporting affidavit failed for the same reason.
The Court decided the second appeal on January 4, 1897, in an opinion by an Associate Justice. It found the reversible error in the instruction on flight.
The trial judge had told the jury that it could treat Starr's flight, including his travel to a distant state and his use of an assumed name, as evidence of guilt. The Court held that the language was in substance the same as instructions it had already found "fatally defective" in two earlier cases from the same court. Flight was relevant evidence when the prosecution offered it, the Court said, but the way the jury had been told to weigh it went beyond what the law allowed. The Court noted that the error had probably arisen because the trial took place before those earlier rulings were handed down.
Because the remaining assignments of error depended largely on the warrant and affidavit, which it had already upheld, and were unlikely to recur, the Court did not reach them. The disposition was the same as in 1894: "Judgment reversed, and case remanded, with directions to grant a new trial."
The case came back to a court that had changed. Under an act of Congress passed in 1895, the Fort Smith court's last criminal jurisdiction over Indian Territory ended on September 1, 1896. The judge who had presided over both of Starr's murder trials died on November 17, 1896, seven weeks before the second reversal.
Facing a third trial, Starr was allowed by the new judge to plead guilty to manslaughter. He was sentenced to fifteen years and sent to serve the term in a penitentiary in Ohio.
In 1903, after a direct appeal to the White House, the president agreed to release him on parole on the condition that he "be good." His conduct during the 1895 jail escape attempt at Fort Smith had reached the president's attention and weighed in the decision.
The condition did not hold. Starr returned to bank robbery, and after a series of robberies he was captured in 1909 and sent to the state penitentiary in Colorado. He was released in 1913 for good behavior, but in 1914 he broke the terms of his parole and returned to Oklahoma, where a new run of bank robberies followed.
On March 27, 1915, he was captured at Stroud, Oklahoma, after an attempt on two banks in the town on the same day. He was sentenced to twenty-five years in the state penitentiary in Oklahoma and was released in 1919, after about four years.
On February 18, 1921, Starr and three other men attempted to rob the People's National Bank in Harrison, Arkansas, the seat of Boone County. The attempt failed. Starr died in Harrison four days later, on February 22, 1921, at the age of forty-seven.
Starr's two appeals were possible only because of a change in the law a few years before his arrest. Until 1889 the decisions of the federal court at Fort Smith in criminal cases were final, and the only relief from a death sentence was a presidential commutation or pardon. On February 6, 1889, Congress removed the court's concurrent circuit court authority and allowed the Supreme Court to review all capital cases. The law took effect on May 1, 1889. The same year a separate Courts Act created a federal court system within Indian Territory and began to reduce Fort Smith's reach there.
Starr's own claim that he had acted in self-defense and did not know the man pursuing him was a lawman was put to two juries, both of which convicted him of murder. Neither conviction stood, and neither reversal rested on a finding that his account was true: the Supreme Court held only that the juries had been wrongly instructed on how to weigh it. His final plea was to manslaughter, and no court ever tried the question of self-defense a third time.
December 2, 1873: Henry Starr is born near Fort Gibson, Cherokee Nation, Indian Territory.
1889: Charged at sixteen with bringing liquor into Indian Territory; acquitted at Fort Smith.
February 6, 1889: Congress opens capital cases from Fort Smith to Supreme Court review, effective May 1, 1889.
1891: Arrested on a horse theft charge; acquitted.
November 18, 1892: A United States commissioner issues a warrant for Starr's arrest on a charge of larceny.
December 13, 1892: The posseman dies in the Cherokee Nation, north of Nowata.
July 1893: Starr is arrested in Colorado Springs, Colorado, and returned to Fort Smith.
November 4, 1893: Sentenced to death for murder; execution set for February 20, 1894.
May 14, 1894: The Supreme Court reverses the conviction and orders a new trial.
July 26, 1895: Starr helps end an escape attempt at the Fort Smith jail.
September 1, 1896: The Fort Smith court's jurisdiction over Indian Territory ends.
November 17, 1896: The trial judge dies.
January 4, 1897: The Supreme Court reverses the second conviction.
1897: Starr pleads guilty to manslaughter and is sentenced to fifteen years.
1903: Released on presidential clemency.
1909: Captured and sent to prison in Colorado.
1913: Released in Colorado; returns to Oklahoma in 1914.
March 27, 1915: Captured at Stroud, Oklahoma; later sentenced to twenty-five years.
1919: Released from prison in Oklahoma.
February 22, 1921: Starr dies in Harrison, Arkansas, four days after a failed bank robbery there.