United States v. Knowlton

3 Dakota 58

Opinion

Moody, J.

At the April term, 1877, of the district court for the Second district, the plaintiff in error w'as indicted for the murder of one David Rauck, and having thereafter been arrested he was, at the November, 1881, term of said court, tried and convicted of manslaughter.

The offense is alleged to have been committed April 10th, 1877, at what is now known as Pierre, in the county of Hughes, but then Indian country.

The contention for the plaintiff in error is, that the offense of murder committed at the place thus alleged, was not an offense against the United States because it was not committed at a place within the sole and exclusive jurisdiction of the United States, nor in the Indian .country within the meaning of the acts of Congress extending the Crimes Act to the Indian country; and therefore the jurisdiction of the offense was not in the court while sitting as and exercising the jurisdiction which pertains to district and circuit courts of the United States, but that the crime was one committed against the laws of the territory, and cognizable, if at all, only in the court sitting for the counties and sub-divisions, and to be prosecuted in the name of the territory.

To define what is Indian country* within the meaning of the act of congress punishing crimes therein committed, is not entirely free from difficulty. The definition given in the act of congress, if not absolutely repealed, has become obsolete and without meaning, as applied to the present condition of the country west of the Mississippi river.

Without entering into a more elaborate definition, it is sufficient for the purposes of this case, to say that the term Indian country includes such portions of the public domain as are expressly reserved for the use and occupation of the several bands and tribes of Indians, and which are not included within the jurisdiction of any state or territorial government.

By the treaty with the Sioux Indians proclaimed February 24th, 1869, 15 U. S. Statutes at Large, page 635, it is among other things, provided that a certain district of country in this territory therein described, together with all existing reservations on the east bank of the Missouri river, shall be set apart fur the use and occupation of the Indians therein named; and in article 2nd. of said treaty, it is further provided that they shall have the exclusive use of such district of country and “of all such territory as may be added to this reservation for the use of said Indians.”

On the eleventh day of January, 1875, the then President of the United States, U. S. Grant made and proclaimed the following executive order:

Executive Mansion, Jan. 11th, 1875.

“ It is hereby ordered that the tract of country in the territory “ of Dakota lying within the following described boundaries, viz.: “ Commencing on the east bank of the Missouri river where the “ 46th parallel of north latitude crosses the same; thence east with “ said parallel of latitude to the 99th degree of west longitude, “thence south with such degree of longitude to the east bank of “the Missouri river, thence up and with the east bank of said river “to the place of beginning, be, and the same hereby is, withdrawn “from sale, and set apart for the use of the several tribes of Sioux “ Indians, as an addition to their present reservation in said terri- “ tory.”

This tract includes the locus of the crime charged against the plaintiff in error.

The authority of the President to make such an order and thereby-to reserve the district of country therein described, for such uses, cannot reasonably be questioned, and has been affirmed by several decisions of the Supreme Court of the United States.

Such district of country was, by the treaty, ,and the action of the President, taken out of the operation of the criminal laws of the territory. The trade and intercourse laws of the United States were extended thereover, as well as the laws for the punishment of crimes, and it was constituted Indian country within the meaning of the acts of congress extending the Crimes Act to the Indian country. It follows that the offenses of murder and manslaughter therein committed, were offenses against the United States, punishable under its laws, and that the District Court sitting for the whole district and exercising the jurisdiction which pertains to the District and Circuit Courts of the United States, liad jurisdiction of this offense at the time of the finding of the indictment, and continued to have such jurisdiction, unless ousted thereof by the effect of the subsequent executive acts to which I shall refer.

By an order of the President, dated August 9th, 1879, all that ■portion of the Sioux reservation, in Dakota territory, created by executive order of January 11th, 1875, (including the place of this crime), was restored to the public domain.

The further contention is that this subsequent executive order operated to repeal the acts of congress punishing crimes committed in that portion of the Indian country, and with such repeal this prosecution must fall.

"Without considering the question of power involved, m view of the treaty stipulations, the effect is not as claimed by the learned counsel. The commission of murder in the Indian country is still a crime against the United States. The same court now has jurisdiction over that particular place to punish crimes there eommitied against the United States. The judicial djstrict is the same; the jurors are drawn from the same district of country, and moreover, section IB, U. S., Rev. Stat., expressly preserves the jurisdiction of the court, notwithstanding the repeal of a criminal statute, over an offense committed before such repeal. Certainly no gre.i'.er effect can reasonably he given to this subsequent executive or 1 tlian should he given to the express repeal of a statute punishing an act as criminal.

The District Court therefore pvoperly exercised its jurisdiction in this case.

During the progress of the trial a witness, Budd, was called by the plaintiff in error, who testified that he was present at the time of the homicide, and gave evidence tending to prove the killing was in self defense. Upon his cross-examination, (being recalled for the purpose), in answer to a question propounded to him by the Tnited States Attorney, lie denied having said to Charles Maxon — a witness for the prosecution — that he had arrived at Pierre two days before the 16th or 17th of April, 1877. Charles Maxon was then called "by the prosecution to prove that Bndd*had told him at Pierre, on the 16th or 17th of April, 1877, that he, Budd, bad arrived at. that place two days before, the object being to discredit Budd in his testimony as to what occurred at the scene of the homicide, such homicide having occurred, by the undisputed evidence, on the 10th of April, six or seven days before the alleged time of the conversation between the witnesses, Maxon and Budd. After he had so testified in chief,’ upon his cross-examination in relation to the declaration of Budd, the defendant’s counsel asked Maxon the following question: “You spoke of a conversation you had with Mr. Budd sometime about the 16th or 17íh of April, 1877; Did he tell you at that conversation anything with regard to this homicide!” This question being objected to by the 17. S. Attorney, the objection sustained by the court, and the ruling duly excepted to, the defendant’s attorney asked the witness, Maxon: “What, if anything further, was said in the conversation you. have just testified to,” and offered to prove by this witness that at the time and place of such conversation given in chief, and as a part of it, the said Budd told the witness, Maxon, that he, Budd, was present at the Eanck homicide, and detailed to him, Maxon, tile facts of the killing as lie saw them.

This question'and the offer being objected to by the U. S. Attorney, the court sustained the objection and the evidence was excluded. To which ruling the defendant duly excepted.

In his examination in chief the witness Maxon had testified, as we have seen, that Budd told liim on the 16th or 17th of April, that he had arrived at Pierre two days before, that is four or five days after the homicide. The solo pertinency of this testimony consisted in its tendency to contradict by such statements made out of court, what lie, Budd, had testified to in court, to wit.: That lie was present at the homicide. In other words it was'an attempt to impeach Bndd by showing that he had made statements out of court contradictory to those made in court from the witness stand. Surely anything which transpired in that conversation which tended to explain such alleged contradictory statements, or which tended to sli )w that his statements then made, were not in fact contradictory to what he had testified in court, was pertinent and was proper to be drawn out upon cross-examination of the witness who had testified to such contradictory statements.

No rule is plainer than that a party has the right upon cross-examination to have given all other parts of the same conversation, not given in the examination in chief, which will serve to explain or to modify the tendency of that part testified to in chief.

It will be borne in mind that Maxon did not testify to the fact of Budd’s arriving in Pierre two days before the 16th or 17th of April, but only that Budd told him he had then arrived there. If he had been permitted to testify that, in the same conversation, Budd had told him he was present at the homicide, and had detailed to him the facts that then occurred, it would have tended to explain the other statement and to remove the impression it was calculated to make upon the minds of the jury, and to show that either Maxon was mistaken in his statement as to the time when Budd said he had arrived, or that Budd had carelessly given an erroneous date of his arrival, a fact wholly unimportant except so far as it had connection with liis presence at the scene of this homicide. The testimony of Maxon in chief, was important and material in throwing discredit upon Budd’s testimony, and the defendant, as well as Bull, hid the right to have all the conversation which would tend in any degree to shed light upon the fact as to when he did arrive at Pierre; and a statement then made that he was present at the homicide, and saw what occurred, would have tended strongly to prove that his two statements were perfectly consistent with each other. Budd had testified to facts which, if true, were very important to tlie defendant in his defense. If the jury believed that Budd was not present because he had only arrived at Pierre on the láth or 15th of April, four or five days after the homicide, then all his testimony relating to facts transpiring at that time, they would have disregarded; whereas, if Maxon had testified as defendant’s counsel offered to prove by him that so shortly after the occurrence, Budd had told him that he was present, and gave him a detailed statement of what there occurred, the effect of Maxon’s testimony would have likely been in defendant’s favor, rather than against him.

The exclusion of this testimony which was ' proper to be adduced upon cross-examination, it being a part of the same conversation called out by the examination in chief, was manifest error which must have prejudiced the defendant, and for this error thus manifestly prejudicial to the defendant, the judgment must be reversed and a new trial awarded.

The other points made by cormsel are not important now to be considered except we may remark that the exceptions urged to the instructions of the learned Chief Justice who presided at the trial, are not well taken. IIis charge upon the law of self defense objected to was as favorable to the defendant as the facts in the case would warrant.

The judgment is reversed, a new trial ordered, and the cause remanded for further proceedings according to law.

All of the Justices concurring.