UNITED STATES V. WILLIAMS.
But an Indian cannot make himself a citizen of the United States without the consent and co.operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civ. ilized people, may be a good reason why he should be made a ' citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege, which no one not born to can assume without its consent in some form. The Indians in Oregon, not being born subject to the juris. diction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made 100 since. It follows as a matter of course that the defendant, in disposing of spirituous liquors to the Indian Joe, when and as he did, was guilty of a violation of the statute. But as it appears probable that the act of the defendant was the result of carelessness or a misapprehension of the status of the Indian Joe, rather than any guilty purpose to violate the law, I think it is a proper case for a mere nominal punishment. The defendant is therefore sentenced to pay a fine of one dollar.
(Circuit Court, D. Oregon.
. ASSAULT WITH A DANGEROUS WEAPON-ATTEMPT TO COMMIT MURDER-
PUNISHMENT.-There is no punishment provided for an assault with a a dangerous weapon, committed within the exclusive jurisdiction of the United States, if committed on land, even if it should involve an tempt to commit murder.
Indictment for an attempt to commit murder. Rufus Mallory, District Attorney, for the United States. William H. Page, for defendant. DEADY, D. J. On January 7, 1879, the grand jury for this district found an indictment against the defendant, containing two counts.
The first one charges him with "an attempt to commit the crime of murder by means not constituting an assault with a dangerous weapon, " by wilfully and maliciously "shooting one Edward Robert Roy," on October 8, 1879, with a loaded pis-, tol, with intent him to murder, at Sitka, in the territory of Alaska. The second one charges him with an assault upon said Roy, at the time and place aforesaid, with a loaded pistol, with intent him to kill, and alleges that said territory of Alaska was then and there Indian territory. The defendant demurred to the indictment upon the ground that the facts stated did not constitute a crime. The court sustained the demurrer to the second count, holding that Alaska was not "the Indian country" within the purview of section 21 of the act of March 27,1854, (10 St. 270; Rev. St. § 2142,) defining the crime of an assault by a white person within such country, with a deadly weapon, with intent to kill, and citing U. S. v. Savaloif, 2 Saw. 311; U. S. v. Carr, 3 Saw. 302; Waters v. Campbell, 4 Saw. 121. The demurrer to the second count was overruled pro forma, whereupon the defendant pleaded guilty thereto, and then moved in arrest of judgment for the cause stated in the demurrer. This count is based upon section 2 of the act of March 3, 1857, (11 St. 250; Rev. St. § 5342,) which provides in effect that every person who, within any place or district of coun· try under the exclusive jurisdiction of the United States, or upon the high seas or other water within the admiralty jurisdiction thereof, and out of the jurisdiction of any particular state, attempts to commit murder "by any means not constituting the offence of assault with a dangerous weagon," shall be punished, etc. Without doubt Sitka, in Alaska, is a place under the exclusive jurisdiction of the United States, and, so far as this charge is concerned, not within the jurisdiction of any organized or judicial district thereof. Therefore, it appearing from the indictment that the defendant was first brought within this district for trial, it follows that, if the alleged
nITED STATES t1. WILLIAllS.
assa.ult is a violation of any law of the United States, the motion must be denied. Rev. St, § 730; U. S. v.Oarr, supra, 304. The only provision in the statutes of the United States for punishing an attempt to commit murder or manslaughter on land, is found in section 534:2, Bupra, but for some reason this is confined to eases where the means used do not constitute "the offence of assault with a dangerous weapon." .The punishment of an assault with a dangerous weapon, or with intent to perpetrate a felony, committed on the waters within the jurisdiction of the United States, and out of the jurisdiction of any particular state, was provided for in seotion 4 of the act of March 3,1825 (4 St. 115; Rev. St. § 5346) but not the attempt to commit murder or manslaughter, unless it was coincident with such assault. But an attempt to commit murder or manslaughter on land, or an assault there, by whatever means committed, was. not punishable by any law of the United States until 1857, when, as has been by section 2, of tho act of March 3 of that year, it was declared that an attempt to commit murder or man. slaughter, whether on land or water, should be punished as therein prescribed, provided, such attempt was not made by means of the assault mentioned in the act of 1825, Bupra, thus limiting the operation of the statute to attempts made by drowning, poisoning, or the like. And probably this was so provided npon the erroneous impression that the act of 1825 was applicable to assaults committed on land as well itS water. But, however this may be, as a result of this patchwork legislation, it appears that there is no punishment provided for an assault with a dangerous weapon, committed within the exclusive jurisdiction of the United States, if committed on land, even if such assault should involve, as it may, and did in this case, an attempt to commit murder. In the drawing of the indictment an effort has been made to bring this oasa within the terms of section 5342, Rev. St., by an averment therein that the attempt to murder was made
"by means not constituting an assault with a dangerous weapon." But this is necessarily avoided, and, in effect, rendered null, by the very statement of the commission of the alleged offence, that the defendant attempted to commit murder by shooting Roy with a loaded pistol. Whether a particular weapon is a deadly or dangerous one is generally a question of law.. Sometimes, owing to the equivocal character of the instrument-as a belaying pin-or the manner and circumstances of its use, the question becomes one of law and fact, to be determined by the jury under the direction of the court. But where it is practicable for the court to declare a particular weapon dangerous or not, it is its duty to do so. A dangerous weapon is one likely to produce death or great bodily injury. A loaded pistol is not only a dangerous but a deadly weapon. The prime purpose of its construction and use is to endanger and destroy life. This is a fact of such general notoriety that the court must take notice of it. U. S. v. Small, 2 Curt. 242; U. S. v. Wil'on, 1 Bald. It appears, then, from the indictment, notwithstanding the averment therein to the contrary, that the act alleged to be an attempt to commit murder was an assault with a dangerous weapon, and therefore not punishable by the statute. The motion in arrest of judgment must be allowed, and the defendant discharged. By this ruling the defendant will escape punishment for what appears to have been an atrocious crime, but the court cannot inflict punishment where the law does not so provide. It is the duty of the legislature to correct the omission or defect in the law, and it is to be hoped that the result in this case will attract the attention of congress to the matter at an early day.
(Circuit Court, D. Nevaita.
TnAvELTIw MERCHANTS-LICENSE TAX-SUBD. 2, § 10, ART. 1, AND SUBD. 3, § 8, AnT. 1, OF THE OONSTITUTION.-A statute of Nevada provided that "every traveling merchant, agent, drummer or other person selling, or offering to sell, any goods, wares or merchandise of any kind, to be delivered at some future time, or carrying Sllmples and selling, or offering to sell, goods, wares or merchandise of any kind similar to such samples, to be delivered at some future time," should obtain a license, and pay $25 a month for the same. The statute further provided that any person without such license, .. so offering any goods, wares or merchandise for sale, sllall be guilty of a misdemeanor, and on conviction shall be fined in any sum not less than $50 nor more than $500." Held, (1) that said statute did not violate subd. 2, § 10, art. 1 of the constitution, prohibiting the states from laying imposts or duties on imports; (2) that such statute did not violate subd. 3, § 8, art. 1 of the constitution, conferring upon congress pQwer to "regulate commerce among the several states."
Lewis IX Deal, for petitioner. Attorney General Murphy, for respondent.
SAWYER. C. J. The petitioner is a citizen of California, and in the employment of Adelsdufer & Co., merchants of San Francisco, Califomia, engaged in the coffee and spice trade. He was traveling is Nevada, engaged in such employment, offering to sell and selling such goods, wares and merchandise as his employers dealt in. Upon making sales he transU1itted the orders to said employers in San Francisco, who filled them and shipped the goods sold to the parties ordel'ing them, at their respective places of business in Nevada. For selling goods in the course of said employment at Virginia City, Nevada, he was arrested and held in custody upon a warrant issued upon a charge of having committed the offence of pursuing such business without having procured a license as required by the statute of Nevada, passed February 20, 1877, (St. 1877-79.) A writ of habeas corpus having been issued and the body of the prisoner produced, he now asks to be discharged from custody on the ground that said act is void, as being in violation of subdivision 3, section 8, article 1, of the Constitution of the United States, conferring upon congress power to "reguv.2,no.1-5