RINGO, District Judge.
On hearing the petition of James L. Dawson, praying a writ of habeas corpus and discharge from imprisonment, and upon hearing the argument of counsel thereupon, as well on behalf of the prisoner as of the United States, it appears by the showing of petitioner that he stands charged by indictment in the circuit court of the United States for the district of Arkansas with the crime of murder, committed in the Indian country, on a white person, on the 8th day of July, A. D. 1844, within the limits of that part of the Indian country then attached to that district;—that this indictment was in due form found by the grand-jury impanelled and sworn in the circuit court, at the April term thereof, A. D. 1845, and by the jury returned and delivered into court as a true bill, on the 16th day of April, A. D. 1845, and then filed; that writs of capias founded thereupon, for his arrest to answer the United States on said charge have been from time to time by order of court issued thereout, and that the prosecution is still pending: that on and by virtue of one of the writs .of capias, issued in due form, bearing date the 20th day .of May, A. D. 1852, addressed to the marshal of the district of Texas, and returnable to said court at the April term thereof, 1853, petitioner was on the 8th day of November, 1852, arrested in the state and district of Texas, by a deputy of the marshal of the district of Texas, by whom he was thence conveyed to the district of Arkansas, and on the 24th day of November, turned over and delivered into the custody of Luther Chase, “marshal of the United States for the Eastern district of Arkansas, and by him committed to the jail of Pulaski county in the last-named district, where he has ever since remained and still is imprisoned, to answer to said indictment; and that no cause, other than said charge, indictment,' capias, and proceedings exists, or ever did exist for his imprisonment and detention in custody. He therefore claims the benefit of the writ of habeas corpus, and that upon the hearing he may be discharged from imprisonment and custody, on the ground that this court is not possessed of jurisdiction of the crime, because the same if committed, was committed at a place not now within its jurisdiction, the place where said crime is charged to have been committed, being in that part of the Indian country, which by act of congress of March 3, 1851, dividing the district of Arkansas, is attached to the Western district of Arkansas for which a separate district court was by said act created and vested with all the jurisdiction and powers of a circuit court, without any reservation to said circuit court of jurisdiction of any crimes previously committed within the limits of said Western district, or the Indian country attached thereto, or any transfer of any prosecution, or case, then pending in the circuit court, to any other court, and without any provision for the trial of such crimes in the district court for the Western district. Wherefore he insists he is legally discharged from any prosecution for said crime, no court possessing the power to punish offences committed in the Indian country now attached to said Western district committed prior to the creation thereof by the division of said Arkansas district, and is now illegally imprisoned and held in custody to answer the said indictment.
I am not satisfied that by the division of the district, and the attaching of the place and Indian country where the crinie is charged to have been committed, to the Western district of Arkansas, the jurisdiction of the circuit court over the crime, and the prosecution thereof were divested, or that this court notwithstanding does not possess ample jurisdiction thereof, and may lawfully proceed to try and punish in such case although the 'place where the crime was committed, if committed at all, is not now within, or attached to, the Eastern district of Arkansas and within which the place, where by law the circuit court is required to hold its sessions, is situated, and inasmuch as the crime charged against the petitioner is a felony, and no sufficient ground for his discharge from imprisonment is shown, admitting all of the facts to be true, as stated in his petition, (with which is exhibited a duly certi-[790]*790ed copy of the indictment and writ of ca-pias, with the return thereto of the marshal above mentioned,) the prayer of the petition is denied.
At the April term, 1853, a motion was made by Dawson, to quash the indictment on the same ground set out in the petition, namely, that the act of 3d March, 1851, creating a court in the Western district of Arkansas, had the effect of destroying the jurisdiction of this court over the case.
This motion waB argued, before DANIEL, Circuit Justice, and RINGO, District Judge. Joseph Stilwell, U. S. Dist. Atty. A. Pike, E. Cummins, and E. H. English, for Dawson. Upon this motion the judges differed in opinion and certified two questions to the supreme court, which are stated in the decision of that court, hereafter introduced.
Dawson applied for bail, but the court on hearing the testimony refused his application.
NOTE. The case in the supreme court was argued at the December term, 1853, Mr. Cush-ing, Atty. Gen., for the United States; and Mr. Lawrence and Mr, Pike, for Dawson; and will be found reported in 15 How. [56 U. S.] 467— 494.
Mr. Justice NELSON
delivered the opinion of the supreme court:
The defendant was indicted in the circuit court of the United States for the district of Arkansas, for the alleged murder of one Seaborn Hill, in the Indian country west of the state of Arkansas. The defendant is a white man and so was HiU, the deceased.
At a circuit court held at the city of Little Rock, on the 28th of April, 1853, the indictment came on for trial before the judges of that court; whereupon a motion was made on behalf of the defendant, to quash the indictment for want ot jurisdiction of the court to try the same. And upon the argument, the judges being divided in opinion, the following question was certified to this court foi its decision:—
1. Did the act of congress, entitled “An act to divide the district of Arkansas into two judicial districts,” approved the 3d of March, 1851, by- which the Western district of Arkansas was created, take away the power and jurisdiction of the circuit court of the United States for the Eastern district of Arkansas, to try the indictment pending against the prisoner, James L. Dawson, a white man, found in the circuit court of the United States for the district of Arkansas, by a grand-jury impanelled on the 16th of April, 1845, for feloniously killing Seaborn Hill, a white man, on the 8th of July, 1844, in the country belonging to the Creek Nation of Indians west of Arkansas, and which formed a part of the Indian country annexed to the judicial district of Arkansas by the act of congress, approved on the 17th of June, 1844 [5 Stat. 680], entitled “An act supplementary to the act entitled ‘An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers,’ ” passed 30th June, 1834 (4 Stat. 729].
To state the question presented for our decision in a more simple form, it is this: At the time the state of Arkansas composed but one judicial district in which the federal courts were held, the Indian country lying west of the state was annexed to it for the trial of crimes committed therein by persons other than Indians.
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RINGO, District Judge.
On hearing the petition of James L. Dawson, praying a writ of habeas corpus and discharge from imprisonment, and upon hearing the argument of counsel thereupon, as well on behalf of the prisoner as of the United States, it appears by the showing of petitioner that he stands charged by indictment in the circuit court of the United States for the district of Arkansas with the crime of murder, committed in the Indian country, on a white person, on the 8th day of July, A. D. 1844, within the limits of that part of the Indian country then attached to that district;—that this indictment was in due form found by the grand-jury impanelled and sworn in the circuit court, at the April term thereof, A. D. 1845, and by the jury returned and delivered into court as a true bill, on the 16th day of April, A. D. 1845, and then filed; that writs of capias founded thereupon, for his arrest to answer the United States on said charge have been from time to time by order of court issued thereout, and that the prosecution is still pending: that on and by virtue of one of the writs .of capias, issued in due form, bearing date the 20th day .of May, A. D. 1852, addressed to the marshal of the district of Texas, and returnable to said court at the April term thereof, 1853, petitioner was on the 8th day of November, 1852, arrested in the state and district of Texas, by a deputy of the marshal of the district of Texas, by whom he was thence conveyed to the district of Arkansas, and on the 24th day of November, turned over and delivered into the custody of Luther Chase, “marshal of the United States for the Eastern district of Arkansas, and by him committed to the jail of Pulaski county in the last-named district, where he has ever since remained and still is imprisoned, to answer to said indictment; and that no cause, other than said charge, indictment,' capias, and proceedings exists, or ever did exist for his imprisonment and detention in custody. He therefore claims the benefit of the writ of habeas corpus, and that upon the hearing he may be discharged from imprisonment and custody, on the ground that this court is not possessed of jurisdiction of the crime, because the same if committed, was committed at a place not now within its jurisdiction, the place where said crime is charged to have been committed, being in that part of the Indian country, which by act of congress of March 3, 1851, dividing the district of Arkansas, is attached to the Western district of Arkansas for which a separate district court was by said act created and vested with all the jurisdiction and powers of a circuit court, without any reservation to said circuit court of jurisdiction of any crimes previously committed within the limits of said Western district, or the Indian country attached thereto, or any transfer of any prosecution, or case, then pending in the circuit court, to any other court, and without any provision for the trial of such crimes in the district court for the Western district. Wherefore he insists he is legally discharged from any prosecution for said crime, no court possessing the power to punish offences committed in the Indian country now attached to said Western district committed prior to the creation thereof by the division of said Arkansas district, and is now illegally imprisoned and held in custody to answer the said indictment.
I am not satisfied that by the division of the district, and the attaching of the place and Indian country where the crinie is charged to have been committed, to the Western district of Arkansas, the jurisdiction of the circuit court over the crime, and the prosecution thereof were divested, or that this court notwithstanding does not possess ample jurisdiction thereof, and may lawfully proceed to try and punish in such case although the 'place where the crime was committed, if committed at all, is not now within, or attached to, the Eastern district of Arkansas and within which the place, where by law the circuit court is required to hold its sessions, is situated, and inasmuch as the crime charged against the petitioner is a felony, and no sufficient ground for his discharge from imprisonment is shown, admitting all of the facts to be true, as stated in his petition, (with which is exhibited a duly certi-[790]*790ed copy of the indictment and writ of ca-pias, with the return thereto of the marshal above mentioned,) the prayer of the petition is denied.
At the April term, 1853, a motion was made by Dawson, to quash the indictment on the same ground set out in the petition, namely, that the act of 3d March, 1851, creating a court in the Western district of Arkansas, had the effect of destroying the jurisdiction of this court over the case.
This motion waB argued, before DANIEL, Circuit Justice, and RINGO, District Judge. Joseph Stilwell, U. S. Dist. Atty. A. Pike, E. Cummins, and E. H. English, for Dawson. Upon this motion the judges differed in opinion and certified two questions to the supreme court, which are stated in the decision of that court, hereafter introduced.
Dawson applied for bail, but the court on hearing the testimony refused his application.
NOTE. The case in the supreme court was argued at the December term, 1853, Mr. Cush-ing, Atty. Gen., for the United States; and Mr. Lawrence and Mr, Pike, for Dawson; and will be found reported in 15 How. [56 U. S.] 467— 494.
Mr. Justice NELSON
delivered the opinion of the supreme court:
The defendant was indicted in the circuit court of the United States for the district of Arkansas, for the alleged murder of one Seaborn Hill, in the Indian country west of the state of Arkansas. The defendant is a white man and so was HiU, the deceased.
At a circuit court held at the city of Little Rock, on the 28th of April, 1853, the indictment came on for trial before the judges of that court; whereupon a motion was made on behalf of the defendant, to quash the indictment for want ot jurisdiction of the court to try the same. And upon the argument, the judges being divided in opinion, the following question was certified to this court foi its decision:—
1. Did the act of congress, entitled “An act to divide the district of Arkansas into two judicial districts,” approved the 3d of March, 1851, by- which the Western district of Arkansas was created, take away the power and jurisdiction of the circuit court of the United States for the Eastern district of Arkansas, to try the indictment pending against the prisoner, James L. Dawson, a white man, found in the circuit court of the United States for the district of Arkansas, by a grand-jury impanelled on the 16th of April, 1845, for feloniously killing Seaborn Hill, a white man, on the 8th of July, 1844, in the country belonging to the Creek Nation of Indians west of Arkansas, and which formed a part of the Indian country annexed to the judicial district of Arkansas by the act of congress, approved on the 17th of June, 1844 [5 Stat. 680], entitled “An act supplementary to the act entitled ‘An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers,’ ” passed 30th June, 1834 (4 Stat. 729].
To state the question presented for our decision in a more simple form, it is this: At the time the state of Arkansas composed but one judicial district in which the federal courts were held, the Indian country lying west of the state was annexed to it for the trial of crimes committed therein by persons other than Indians. In this condition of the jurisdiction of these courts, the crime in question was committed in the Indian country, and the indictment found in the circuit court at the April term, 1845, while sitting at the city of Little Rock, the place of holding the court.
Subsequent to this the state was divided into two judicial districts, the one called the Eastern and the other the Western district of Arkansas. The Indian country was attached to, and has since belonged to the Western district. The question presented for our decision is, whether or not the circuit court for the Eastern district is competent to try this indictment, since the change in the arrangements of the districts.
By the 24th section of the act of congress, June 30, 1834 (4 Stat. 733), it was provided that all that part of the Indian country west of the Mississippi river, bounded north by the northern boundary of lands assigned to the Osage tribe of Indians, west by the Mexican possessions, south by Red river, and east by the west line of the territory of Arkansas and state of Missouri, should be annexed to the territorial government of Arkansas for the sole purpose of carrying the several provisions of the act into effect. And the 25th section enacted, that so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country, provided the same shall not extend to crimes committed by one Indian against the person or property of another Indian. The act of congress of June 7th, 1844 (5 Stat. 680), which was enacted after the territory of Arkansas became a state, provided that the courts of the United States for the district of Arkansas should be vested with the same power and jurisdiction to punish crimes committed within the Indian country, designated in the 24th section of the act of 1834, and therein annexed to the territory of Arkansas, as were vested in the courts of the United States for said territory before the same became a state; and that for the sole purpose of carrying the act into effect, all that Indian country theretofore annexed by said 24th section to the said territory, should be annexed to the state of Arkansas.
As we have already stated, the crime in question was committed in this Indian country, after it was annexed for the purposes stated, to the state of Arkansas; and the indictment was found in the circuit court of the United States for the district of Arkansas, which we have seen was coextensive with the state. And if no change had taken place in the arrangement of the district before the trial, there could of course have been no question as to the jurisdiction of the court. But by the act of congress 3d March, 1851, it was provided that the counties of Benton and eight others enumerated, and all that part of the Indian country annexed to the state of Arkansas for the purposes stated, should constitute a new judicial district, to be styled “The Western district of Arkansas,” and the residue of said state shall remain a judicial district, to be styled “The Eastern district of Arkansas.” The 2d section provides, that the judge of the.district court shall hold two terms of his court in this Western district in each year at Van Burén, the county seat in Crawford county. And the third confers upon him, in addition to the ordinary powers of a district court, jurisdiction within the district of all causes, civil or criminal, except appeals and writs of error which are cognizable before a circuit court of the United States. The fourth provides for the appointment of a district attorney and marshal for the district, and also for a clerk of the court.
It will be seen, on a careful perusal of this act, that it simply erects a new judicial district out of nine of the western counties in the state, together with the Indian country, and confers on the district judge, besides the jurisdiction already possessed, circuit court powers within the district, subject to the. limitation as to appeals and writs of error; leaving the powers and jurisdiction of the circuit and district courts, as they existed in the remaining portion of the state, [791]*791untouched. These remain and continue within the district after the change, the same as before; the only effect being to restrict the terri- - tory over which the jurisdiction extends. Hence no provision is made as to the time or place oí. holding the circuit or district courts in the district, or in respect to the officers of the courts, such as district attorney, marshal, or clerk, or for organizing the courts for the despatch of their business. These are all provided for under the old organization. 5 Stat. 50, 51, 176, 177, 178.
We do not, therefore, perceive any objection to the jurisdiction of these courts over cases pending at the time the change took place, civil and criminal, inasmuch as the erection of the new district was not intended to affect it in respect to such cases, nor has it in our judgment necessarily operated to deprive them of it.
It has been supposed that a provision in the sixth amendment of the constitution of the United States has a bearing upon this question, which provides that, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” The argument is. that since the erection of the new district out of the nine western counties in the state, together with the Indian country, it is not competent for the circuit court, in view of this amendment, to try the prisoners within the remaining portion of the old district, inasmuch as that amendment requires that the district within which the offence is committed, and the trial to be had, shall be ascertained and fixed previous to the commission of the offence. But it will be seen from the words of this amendment, that it applies only to the case of offences committed within the limits of a state; and whatever might be our conclusion, if this offence had been committed within the state of Arkansas, it is sufficient here to say, so far as it respects the objection, that the offence was committed out of its limits, and within the Indian country. The.language of the amendment is too particular and specific to leave any doubt about it. “The accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall be committed, which district shall have been previously ascertained by law.”
The only regulation in the constitution, as It respects crimes committed out of the limits of a state, is to be found in article 3, § 2 of the constitution, as follows:—“The trial of crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.” Accordingly, in the first crimes act, passed April 30, 17UU, § 8 (1 Stat. 114), it was provided, that “the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought.” A crime, therefore, committed against the laws of the United States, out of the limits of a state, is not local, but may be tried at such place as congress shall designate by law. This furnishes an answer to the argument against the jurisdiction of the court, as it respects venue, trial in the county, and jury from the vicinage, as well as in respect to the necessity of particular or fixed districts before the offence. These considerations have no application or bearing upon the question.
In this case, by the annexation of the Indian country to the state of Arkansas, in pursuance of the act of 1844 for the punishment of crimes committed in that country, the place of indictment and trial was in the circuit court of the United States for that state in which the indictment has been found and was pending in 1851, when the Western district was set off; and as that change did not affect the jurisdiction of the court as it respected pending cases, but remained the same after the alteration of the district as before, it follows that the trial of the indictment in this court will be at the place and in the court as prescribed by law, which is all that is required in the case of an offence committed out of the limits of a state.
We shall direct, therefore, an answer in the negative to be certified to the court below to the first question sent up for our decision, as we are of opinion the court possesses jurisdiction to hear and give judgment on the indictment.
The second question sent up in the division of opinion is as follows:—Can the district court ot the United States for the Western district of Arkansas take jurisdiction of the case aforesaid, so found in the year 1845, in said circuit court for the district of Arkansas?
As our conclusion upon the first question supersedes the necessity of passing upon the second, it will be unnecessary to examine it, and we shall therefore confine our answer and certificate to the court below to the first.