Opinion of the court by
IRWIN J.:
While there are several assignments of error by the appellant, we think it will be necessary to notice but two. First. It-is contended that the statutes of the territory in reference to the drawing and empaneling of grand jurors is mandatory, and that all of its provisions must be substantially complied with in order to constitute a legal, jury, and that-the drawing and empaneling of the grand jury in question was not in either substantial or exact' compliance, with the law. We have examined this record carefully, and think this contention is not‘tenable. In the case of
Francis D. Malignon v. The Territory of Oklahoma,
filed August 24th, 1899, and reported in the 8th Okla. page 439, this court laid down the rule as follows:
“In the absence of any suggestion or showing that the, failure to comply with the statutory requirements in regard.
to drawing^ jurors has injuriously affected the substantial rights of the defendant, this court will not reverse the action of the trial court in overruling a challenge to the array, founded upon such grounds.”
And substantially the same doctrine was enunciated by this court in the case of
Huntley v. The Territory,
7th, Okla. p. 60, and in the case of
Queenan v. Territory,
11th, Oklahoma, p. 262, which case was affirmed by the U. S. supreme court (190 U. S., p. 548;) and we think these decisions lay down the true rule, and are the law of this territory in regard to the subject, and on the authority of these cases, and the cases therein cited, we think there is nothing in the contention of plaintiff in error as to this proposition.
The next proposition urged for a reversal of this case is:
"That neither count of the indictment states facts sufficient to constitute a cause of action, for the reason that neither count relates to any act or transaction on the part of plaintiff in error as Indian agent which constitute a part of his official power and authority, under the law as here quoted, and because neither count sets forth with sufficient certainty the facts and circumstances constituting the offense sought to be charged.”
The indictment in this case is under section 5501 of the revised statutes of the United States, which provides:
"Every officer of the United-States, and every person acting for or on behalf of the United States in any official capacity, under or by virtue of the authority of any department or office of the government * *' who asks, accepts or receives any money, or any contract, promise, undertaking, obligation, gratuity or security, for the payment of money, or for the delivery or conveyance of any thing of value, with the intent to have his decision or action on any question, mat
ter, cause or proceeding, which may at any time be pending, or which may be by law brought before him, in his official capacity, or in his place of trust or profit, influenced thereby shall be punished * *
■ This indictment in the first count, charges, among other things, that Asa C. Sharp, the defendant, then and there was an officer of the United States, to-wit, an Indian agent, acting for and on behalf of the United States, and as such officer, the said Sharp, in the capacity aforesaid, having charge of the execution and completion of leases of certain Indian lands, did then and there corruptly, unlawfully and feloni-ously, ask, accept and receive a bribe from one Henry E. Asp, with intent to have his action on the execution and completion of the leases aforesaid, influenced thereby.
The first question to be considered is, "Is an Indian agent a United States officer?” Section 2058 of the revised statutes of the United States defines the duties of an Indian agent as ■follows:
“Each Indian agent shall within his agency manage and superintend the intercourse with the Indians agreeably to law; and execute and perform such regulations and duties, not inconsistent with the law, as may be prescribed by the president, the secretary of the interior, commissioner of Indian affairs, or the superintendent of Indian affairs.”
Section 463. “The commissioner of Indian affairs shall, under the direction of the secretary of the interior, and agreeably to such regulations as the president may prescribe, have the management of all Indian affairs, and of all matters arising out of Indian relations.”
It is apparent that the Indian agent is but a subordinate branch of that department of the government in charge of
the Indian affairs. That he is under the direction and control'of the president, secretary of the interior, and other officers of such department, and it seems to us that it must be apparent that such an agent, appointed by the president, and under the constant orders of the secretary of the interior and the commissioner of Indian affairs, is a government officer. But, it is contended by the counsel for the plaintiff in error that he was not a government officer, and was not acting as the agent of the government but as the agent of the Indians. It seems to us that he could not be considered the agent of the Indians, for the reason that he was controlled by another power, superior to both him and the Indians. His. directions come from .the government; he acts as an officer to carry out the affairs of the government in reference to Indian lands, and in the execution of these leases he was simply an officer of the government who carried out the affairs of the government, and his only duties, other than as an executive officer was to advise with the Indian department as to the best method to be adopted, and as to the best policy to pursue as to the making of these leases.
The next argument of the defendant is that this indictment does not charge the offenses with sufficient certainty, to constitute a public offense for the reason that the land to be leased is not described, or the number of the lease or the name of the lessee, or the quantity of each or the form and number of the lease or the condition of .the contract. We have examined this indictment and we think it is drawn substantially in the language of the statute, and this has been repeatedly held to be sufficient:
In Hughes’ Criminal Law and Procedure, page 392, article 1509', the author lays down the mle:
"Charging the offense of bribery substantially in the language of the statute defining it, sufficiently 'states the offense in the indictment or information.”
As authority for this proposition are cited
People v. Edson,
68 Cal. 549;
State v. McDonald,
106 Ind. 233;
State v. McCrystol,
43 La. 907.
In
Commonwealth v. Lapham,
156 Mass. 480, the matter about which the bribe was given is described as follows: "Certain specimens of milk then and there being, in the custody and possession of one A. B.,” and this was held to be sufficient. «
In the case of
Glover v. The State,
109 Ind. 391, the subject-matter of the bribery was described as "Certain School Furniture.”
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the court by
IRWIN J.:
While there are several assignments of error by the appellant, we think it will be necessary to notice but two. First. It-is contended that the statutes of the territory in reference to the drawing and empaneling of grand jurors is mandatory, and that all of its provisions must be substantially complied with in order to constitute a legal, jury, and that-the drawing and empaneling of the grand jury in question was not in either substantial or exact' compliance, with the law. We have examined this record carefully, and think this contention is not‘tenable. In the case of
Francis D. Malignon v. The Territory of Oklahoma,
filed August 24th, 1899, and reported in the 8th Okla. page 439, this court laid down the rule as follows:
“In the absence of any suggestion or showing that the, failure to comply with the statutory requirements in regard.
to drawing^ jurors has injuriously affected the substantial rights of the defendant, this court will not reverse the action of the trial court in overruling a challenge to the array, founded upon such grounds.”
And substantially the same doctrine was enunciated by this court in the case of
Huntley v. The Territory,
7th, Okla. p. 60, and in the case of
Queenan v. Territory,
11th, Oklahoma, p. 262, which case was affirmed by the U. S. supreme court (190 U. S., p. 548;) and we think these decisions lay down the true rule, and are the law of this territory in regard to the subject, and on the authority of these cases, and the cases therein cited, we think there is nothing in the contention of plaintiff in error as to this proposition.
The next proposition urged for a reversal of this case is:
"That neither count of the indictment states facts sufficient to constitute a cause of action, for the reason that neither count relates to any act or transaction on the part of plaintiff in error as Indian agent which constitute a part of his official power and authority, under the law as here quoted, and because neither count sets forth with sufficient certainty the facts and circumstances constituting the offense sought to be charged.”
The indictment in this case is under section 5501 of the revised statutes of the United States, which provides:
"Every officer of the United-States, and every person acting for or on behalf of the United States in any official capacity, under or by virtue of the authority of any department or office of the government * *' who asks, accepts or receives any money, or any contract, promise, undertaking, obligation, gratuity or security, for the payment of money, or for the delivery or conveyance of any thing of value, with the intent to have his decision or action on any question, mat
ter, cause or proceeding, which may at any time be pending, or which may be by law brought before him, in his official capacity, or in his place of trust or profit, influenced thereby shall be punished * *
■ This indictment in the first count, charges, among other things, that Asa C. Sharp, the defendant, then and there was an officer of the United States, to-wit, an Indian agent, acting for and on behalf of the United States, and as such officer, the said Sharp, in the capacity aforesaid, having charge of the execution and completion of leases of certain Indian lands, did then and there corruptly, unlawfully and feloni-ously, ask, accept and receive a bribe from one Henry E. Asp, with intent to have his action on the execution and completion of the leases aforesaid, influenced thereby.
The first question to be considered is, "Is an Indian agent a United States officer?” Section 2058 of the revised statutes of the United States defines the duties of an Indian agent as ■follows:
“Each Indian agent shall within his agency manage and superintend the intercourse with the Indians agreeably to law; and execute and perform such regulations and duties, not inconsistent with the law, as may be prescribed by the president, the secretary of the interior, commissioner of Indian affairs, or the superintendent of Indian affairs.”
Section 463. “The commissioner of Indian affairs shall, under the direction of the secretary of the interior, and agreeably to such regulations as the president may prescribe, have the management of all Indian affairs, and of all matters arising out of Indian relations.”
It is apparent that the Indian agent is but a subordinate branch of that department of the government in charge of
the Indian affairs. That he is under the direction and control'of the president, secretary of the interior, and other officers of such department, and it seems to us that it must be apparent that such an agent, appointed by the president, and under the constant orders of the secretary of the interior and the commissioner of Indian affairs, is a government officer. But, it is contended by the counsel for the plaintiff in error that he was not a government officer, and was not acting as the agent of the government but as the agent of the Indians. It seems to us that he could not be considered the agent of the Indians, for the reason that he was controlled by another power, superior to both him and the Indians. His. directions come from .the government; he acts as an officer to carry out the affairs of the government in reference to Indian lands, and in the execution of these leases he was simply an officer of the government who carried out the affairs of the government, and his only duties, other than as an executive officer was to advise with the Indian department as to the best method to be adopted, and as to the best policy to pursue as to the making of these leases.
The next argument of the defendant is that this indictment does not charge the offenses with sufficient certainty, to constitute a public offense for the reason that the land to be leased is not described, or the number of the lease or the name of the lessee, or the quantity of each or the form and number of the lease or the condition of .the contract. We have examined this indictment and we think it is drawn substantially in the language of the statute, and this has been repeatedly held to be sufficient:
In Hughes’ Criminal Law and Procedure, page 392, article 1509', the author lays down the mle:
"Charging the offense of bribery substantially in the language of the statute defining it, sufficiently 'states the offense in the indictment or information.”
As authority for this proposition are cited
People v. Edson,
68 Cal. 549;
State v. McDonald,
106 Ind. 233;
State v. McCrystol,
43 La. 907.
In
Commonwealth v. Lapham,
156 Mass. 480, the matter about which the bribe was given is described as follows: "Certain specimens of milk then and there being, in the custody and possession of one A. B.,” and this was held to be sufficient. «
In the case of
Glover v. The State,
109 Ind. 391, the subject-matter of the bribery was described as "Certain School Furniture.”
In the case of
Walsh v. People,
65 Ill. 58, the description was “Certain Beal Estate.”
In the United States v. Boyer, 85 Fed. Rep. 427, the subject-matter was described as “Certain carcasses of cattle at the packing house of the said Jacob Dold Packing Company which had been condemned.”
In all of these cases the indictments were held- to be sufficient.
In the indictment in the case at bar the description of the leases were:
“Certain leases for certain tracts of land in the Ponca Indian reservation commonly known as the East Ponca Pasture, and the West Ponca Pasture, and also of certain other leases for four certain other tracts of land in the Otoe and Missouri Indian reservation, commonly known as the west half of the West Otoe Pasture, the east half of the West Otoe pasture, the west ten thousand acres of the East Otoe pasture,
the east forty-three thousand acres of the East Otoe Pasture; the execution and completion of which leases
we j
then and there pending before him in his official capacity aforesaid.”
We think the description of the leases described in the indictment in the case at bar is much inore full and complete than those referred to in the authorities cited, and we think the indictment describes the leases with sufficient certainty to apprise the defendant of the offense with which he is charged.
Hence, we think that the action of the court in overruling the motion to set aside the indictment and in overruling the motion for a new trial, and the pronouncing of sentence on the verdict of the jury was sustained by the law and the evidence.
For these reasons the action of the lower court is affirmed.
Burwell, J., who presided in the court below, not sitting; Plainer, J., having taken some part in this case in the district court, not sitting; all the other Justices concurring.