Brown v. United States

265 F. 623, 1920 U.S. App. LEXIS 1463

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 30, 1920
• Docket: No. 5396
• Status: Published

Opinion

STONE, Circuit Judge.

Error from conviction for having intoxicating liquor in possession within the Indian country, where the introduction thereof is prohibited by treaty or federal statute, in violation of section 1 of the Act of May 25, 1918 (40 Stat. 56E 563 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4137aa]).

[1] The contentions of plaintiff in error are as follows: First, that the statute prohibiting possession of intoxicants is void as an invasion of the police power of the states; second, that the authority of the government to legislate concerning intoxicants in reference to the locality • here involved (Crosby, Minn.), must be based upon the Chippewa Treaty of February .22, 1855 (10 Stat. 1165), and that, so limited, the statute has-no application here; third, that evidence of sales of liquor to these Indians by plaintiff in error, occurring about two weeks, prior to this defense, was improperly admitted.

There is no dispute that the place where plaintiff in error possessed this liquor was Indian country. Nor is there any dispute thqt the introduction of intoxicating liquors was prohibited in this Indian country when this statute was enacted, nor could there be such dispute, as that has been settled by a decision upon this very provision of this treaty. Johnson v. Gearlds, 234 U. S. 422, 34 Sup. Ct. 794, 58 L. Ed. 1383. To prohibit possession of intoxicants is a recognized and judicially approved means of enforcing prohibition laws. Barbour v. State, 249 U. S. 454, 39 Sup. Ct. 316, 63 L. Ed. 704; Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304. The power of Congress to prescribe and enforce prohibition in Indian country is settled. Johnson v. Gearlds, 234 U. S. 422, 34 Sup. Ct. 794, 58 L. Ed. 1383, and cases there cited.

[2] There is no merit in the contention that the terms of the Chippewa Treaty of 1855 (10 Stat. 1165) eliminated the application of this statute. Article 7 of that treaty provides:

“The laws which have'been or may be enacted by Congress, regulating trade and intercourse with the Indian tribes, to continuo and be in force within and upon the several reservations provided for heroin; and those portions of said laws which prohibit the introduction, manufacture, use of, and traffic in, ardent spirits, wines, or other liquors, in the Indian country, shall continue and be in force, within the entire boundaries of the coiintry herein ceded to the United States, until otherwise provided by Congress.”

The reference to existing laws was to the Act of June 30, 1834 (4 Stat. 729), which prohibited the introduction, manufacture, or' traffic in liquor within the Indian country. Johnson v. Gearlds, 234 U. S. 422, 435, 34 Sup. Ct. 794, 58 L. Ed. 1383. As to proscribe possession of liquor in Indian country is a proper method of enforcing laws against its introduction or traffic in it, the statute here involved' clearly comes within the treaty provisions.

[3] The evidence claimed to have been erroneously admitted was of unlawful introduction of liquor into this same" locality from 14 to 16 days prior to this offense, and from 6 to 8 days before the statute now involved became effective. This was a similar offense, but a short time before the one in question, and would strongly bear upon the course of conduct of accused, of which the present act was one. We see no prejudice in the admission of this evidence.

The judgment is affirmed.