Application for a Writ of Habeas Corpus of Wesley v. Schneckloth

346 P.2d 658, 55 Wash. 2d 90, 1959 Wash. LEXIS 491

• Court: Washington Supreme Court
• Decided: November 19, 1959
• Docket: No. 34127
• Status: Published

Opinions

Weaver, C. J.

Joseph Joe Wesley was charged in the superior court with grand larceny committed in Yakima county, Washington. Having waived counsel and pleaded guilty, he was sentenced to the state penitentiary for a period of not more than fifteen years. Nothing in the record indicates that Mr. Wesley’s status as an enrolled member of the Yakima Indian tribe was ever brought to the attention of the trial court; nor does it appear that the trial court was advised that the offense was committed in “Indian country,” as that term is defined in 18 U. S. C. (1952 ed.) § 1151. No jurisdictional issue was raised nor suggested when he was arraigned and sentenced.

January 2, 1957, he filed a petition for writ of habeas corpus. The return and answer thereto raised issues of fact that could not be “determined from the face of the record,” so this court referred the matter to the trial court. See Rule on Appeal 56(5), RCW, Vol. 0.

January 30, 1958, the superior court of Yakima county entered findings of fact that, omitting the formal portions thereof, state:

“1. At the time of the commission of the offense charged in the Information, the petitioner was an enrolled member of the Yakima Tribe of the State of Washington.

“2. That the alleged offense was committed within the exterior boundaries of the Yakima Indian Reservation, to-wit: Toppenish, Yakima County, Washington, which city is located within ‘Indian country’, as defined in Title 18 U.S.C.A., Sec. 1151 (250) 62 Stat. 757, Amended May 24, 1949, 63 Stat. 94.”

18 U. S. C. (1952 ed.) § 1153, generally known as the Ten Major Crimes Act², provides:

“Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

“As used in this section, the offense of rape shall be defined in accordance with the laws of the State in which the offense was committed, and any Indian who commits the offense of rape upon any female Indian within the Indian country, shall be imprisoned at the discretion of the court.

“As used in this section, the offense of burglary shall be defined and punished in accordance with the laws of the State in which such offense was committed.” (Italics ours.)

Two questions are presented: (1) May jurisdiction of the trial court be questioned for the first time by a writ of habeas corpus? and (2) Did the federal court have exclusive jurisdiction to try Mr. Wesley for the alleged crime of grand larceny, by reason of the facts determined upon reference of the writ of habeas corpus to the trial court?³ We conclude that both questions must be answered in the affirmative.

This court—in exceptional circumstances—has received evidence in habeas corpus proceedings supporting collateral attacks on judgments of conviction when the contention has been that due process, guaranteed to the petitioner by the constitution of the state or of the United States, has been violated or denied. The exceptional circumstances that justified the extension of the scope of inquiry in habeas corpus are set forth in RCW 7.36.130 and RCW 7.36.140.

A few of the cases in which this court has considered evidence that did not appear in the trial court record are:

Thorne v. Callahan, 39 Wn. (2d) 43, 234 P. (2d) 517 (1951). (Established that there was no understanding waiver of counsel.)

In re Gensburg v. Smith, 35 Wn. (2d) 849, 215 P. (2d) 880 (1950). (Evidence received, but held it failed to establish that a plea of guilty was not knowingly and voluntarily made; and also failed to establish that the right to counsel was not competently and understandingly waived.)

In re Hein v. Smith, 35 Wn. (2d) 688, 215 P. (2d) 403 (1950). (Evidence of perjury at the trial received, but held not to establish that the prosecution procured the perjured testimony or that it knowingly presented perjured testimony to the jury.)

A case more in point with the instant one, however, is In re Andy, 49 Wn. (2d) 449, 302 P. (2d) 963 (1956). A reference to the original pleadings in that case discloses that the judgment and sentence entered by the superior court, resulting in Joe Andy’s commitment to the penitentiary, are valid on their face.

Counsel, however, stipulated certain facts; namely, (a) that Joe Andy was an unemancipated member of the Yakima Indian tribe; (b) that he pleaded guilty to the charge of second-degree burglary; (c) that the crime was committed within the geographic limits of the Yakima Indian reservation upon lands, originally a part of an Indian allotment, now patented to a non-Indian; and (d) that the jurisdictional question was not brought to the attention of the trial court at the time Joe Andy pleaded guilty and was committed to the penitentiary.

We considered the stipulation and held that the superior court did not have jurisdiction of the offense. We ordered the petitioner released.

The word “jurisdiction” is derived from the Latin “juris” and “dico.” It means “I speak by the law.” 50 C. J. S. 1089.

“Jurisdiction does not relate to the right of the parties, as between each other, but to the power of the court.” People v. Sturtevant, 9 N. Y. 263, 269, 59 Am. Dec. 536 (1853).

A constitutional court cannot acquire jurisdiction by agreement or stipulation. Either it has or has not jurisdiction. If it does not have jurisdiction, any judgment entered is void ab initio and is, in legal effect, no judgment at all. Jurisdiction should not be sustained upon the doctrine of estoppel, especially where personal liberties are involved.

It is our considered opinion that lack of original jurisdiction to hear and determine a case meets the “exceptional circumstance” rule, and that evidence of lack of jurisdiction may be received for the first time and considered in an application for writ of habeas corpus.

Fundamentally, the second question is a federal one, and we are bound by federal statutes and decisions.

The factual pattern of the instant case matches that of the tortuous judicial trail of a California Indian, Rayna Tom Carmen, who was charged with murder allegedly committed April 23,1950. A trial held in June, 1950, resulted in a judgment of conviction that was reversed by the California Supreme Court for improper instructions. People v. Carmen, 36 Cal. (2d) 768, 228 P. (2d) 281 (1951).

Carmen was again tried and found guilty of first-degree murder in October, 1951. On automatic appeal to the Supreme Court,

“ . . . additional evidence in the form of a stipulation was produced for the purpose of determining whether or not the state courts had jurisdiction to try defendant for the crime of murder.” People v. Carmen, 265 P. (2d) 900, 901 (Cal. 1954).

The stipulation disclosed that the accused and his alleged victim were Indians and that the alleged crime was committed on an Indian allotment.

A unanimous court held that, by reason of the applicable federal statutes, the federal court had exclusive jurisdiction of the alleged crime; that the state superior court was without jurisdiction to try Carmen. The judgment of conviction was held to be a nullity; it was reversed, with directions to the trial court to dismiss the information. People v. Carmen, 265 P. (2d) 900 (Cal. 1954).

February 24, 1954, the California Supreme Court granted a rehearing

“ . . . to give further consideration to the question of receiving additional evidence on appeal in death penalty cases.” People v. Carmen, 43 Cal. (2d) 342, 344, 273 P. (2d) 521, 522 (1954).

Upon rehearing, the California Supreme Court reversed its position. It affirmed the judgment of conviction. The court said:

“. . . We have concluded that the proposed offer to produce additional evidence on the appeal should be denied. Furthermore, even assuming that additional evidence could be received on appeal in this class of cases by stipulation or otherwise, the facts stated in the so-called ‘stipulation’ as well as shown in the entire record are insufficient to show exclusive jurisdiction in the federal courts.” People v. Carmen, supra, p. 348.

The court did not

“ . . . pass on the question of what remedies may be' available to the defendant to show alleged lack of jurisdiction in the state court.” People v. Carmen, supra, p. 349.

November 10, 1954, Mr. Carmen filed a petition for writ of habeas corpus in the California Supreme Court. He alleged that the federal courts had exclusive jurisdiction, by reason of the applicable federal statutes.

Because of the alleged jurisdictional questions involved, the court issued a writ of habeas corpus and made an order of reference so that the status of the petitioner and the locus of the alleged crime could be determined by the trial court.

The referee found that petitioner and his victim were enrolled members of the Mono tribe and that the crime was committed on an Indian allotment. This appears to have been a useless gesture, for the court said:

“We have reached this conclusion because we are of the opinion that in the absence of exceptional circumstances, which are not present here, petitioner may not contest, in this collateral attack upon the final judgments of conviction, the trial court’s determination and exercise of jurisdiction, upon the basis of new and additional facts which do not appear in the trial court record.” In re Carmen, 48 Cal. (2d) 851, 853, 313 P. (2d) 817, 818 (1957).

The writ of habeas corpus was discharged, and the petitioner remanded to custody.

Upon the adverse ruling by the Supreme Court of California on his petition for habeas corpus, Mr. Carmen applied to the United States Supreme Court for a writ of certiorari to review the judgment. January 13, 1958, his application was denied

“. . . without prejudice to an application for a writ of habeas corpus in an appropriate United States District Court.” Carmen v. Dickson, 355 U. S. 924, 2 L. Ed. (2d) 354, 78 S. Ct. 367 (1958).

Next, Mr. Carmen filed a petition for a writ of habeas corpus in the United States District Court, Northern District, California, Southern Division. Chief Judge Goodman issued the writ and ordered petitioner discharged from custody. In re Carmen, 165 F. Supp. 942 (Sept. 1958).

September 29, 1959, the United States Court of Appeals for the Ninth Circuit affirmed the district court by Per Curiam opinion and said:

“The exhaustive opinion of Judge Goodman leaves nothing to be added, and his judgment is affirmed.” Dickson v. Carmen, No. 16185, 270 F. (2d) 809 (C.A. 9th; September 29, 1959).

To analyze Judge Goodman’s decision in detail would unduly extend this opinion. We believe the following summary of his ultimate decision is sufficient:

(a) Federal courts have exclusive jurisdiction over offenses enumerated in the Ten Major Crimes Act (18 U.S.C. (1952 ed.) § 1153) when they are committed by an Indian in “Indian country.”

(b) “The right to be tried in a Federal Court accorded petitioner by the Ten Major Crimes Act, was not a mere procedural right, waived unless asserted. It could not have been waived even by express agreement. The Ten Major Crimes Act was enacted for the protection of the Indian wards of the United States. Both the trial court and the state’s attorneys had a duty to uphold this federal statute. They had a responsibility to see to it that the court did not improperly assume jurisdiction over an Indian ward of the Federal government.” In re Carmen, 165 F. Supp. 942, 950 (1958). (Italics ours.)

(c) In a proceeding on a petition for a writ of habeas corpus by an Indian charged with the commission of one of the Ten Major Crimes committed in “Indian country,” a federal court will consider facts dehors the trial record in order to test the jurisdiction of the state court to try the petitioner.

The futility of a state court’s adopting rules at variance with these conclusions is illustrated by the history of the Carmen case in California.

We are aware of the difficulty our conclusions cause in the field of law enforcement (See State v. Begay, 63 N. M. 409, 320 P. (2d) 1017 (1958)), and of the related problems they raise, as discussed in “Extent of Washington Criminal Jurisdiction Over Indians,” 33 Wash. L. Rev. 289 (1958); but the solution in this state lies in corrective legislation (see 18 U.S.C. (1952 ed. (Supp. V)) § 1162, as amended August 8, 1958, 72 Stat. 545), not in unauthorized assumption of jurisdiction by our state court.

Joseph Joe Wesley was an enrolled member of the Yakima Indian tribe at the time he allegedly committed grand larceny, one of the Ten Major Crimes, within the exterior boundaries of the Yakima Indian Reservation.

In these circumstances, the Ten Major Crimes Act vests exclusive jurisdiction in the courts of the United States.

The writ of habeas corpus shall issue, and respondent is ordered to release petitioner from custody.

Donworth, Rosellini, Ott, Foster, and Hunter, JJ., concur.

2 There has been no amendment of this section, but § 1163, making embezzlement or theft from an Indian tribal organization a separate offense, was added to the code of 1956, and now reference is sometimes made to Eleven Major Crimes. 18 U. S. C. (1952 ed. (Supp. IV)) § 1163.

3 This is a companion case to six other Indian habeas corpus proceedings. No contention is made in any of the cases that the offense was one over which only a tribal court had jurisdiction. The issues, in each case, are (1) whether the jurisdictional issue could be waived; and (2) whether the federal courts had exclusive jurisdiction. Only one of the seven cases—In re Johnnie v. Rhay, infra p. 113, 346 P. (2d) 657— raises a constitutional question.