(District Go'Urt, S. D. Mississippi.
PuBLIC LANDS - PROTECTION OF TIMBER SECTION 2461, REV. ST·· CONSTRUED.
May 26, 1886.>
It is a violation of section 2461, Rev. St.· to box: and chip trees, growing OD the public domain, for turpentine purposes.
BOXING TREES FOB .
Motion to Exclude Evidence.
J. B. Harris, U. S. Atty., for the United States.
Luke Lea, for defendant.
HILL, J. It is admitted in this case that the trees were not severed or felled, and that the only cutting was what is known as boxing and chipping the trees, in order to extract the gum or sap, for turpentine or resin. The counsel for the defendant moves the court to exclude the evidence of the plaintiff, as it does not make out an offense against the law. I am, however, of the opinion that the motion must be overruled. The object and purpose of the statute (section 2461) is to protect the public timber. This purpose would, in 80 great measure, be defeated should the view of defendant's counsel prevail. The language of the statute is, "cut, or procure to be cut, or aid or assist or be employed in cutting," etc., "with intent to export, dispose of, use, or employ the sama in any manner whatsoever other than for the use of the navy of the United States." Certainly cutting the timber in order to extract its gum and sap for one's private use is cutting it with intent to use and employ it in So manner other than for the navy of the United States. Motion overruled.
(lJistrict Gourt, W; lJ. Arkansas. May Term, 1886.)
CRIMINAL LAW-WARRANT FOR REMOVAL-TRIAL, WHERE HAD.
The judge of a United States court, when acting on an application for a warrant for the removal of a person charged with crime, from one district to another for trial. is to exercise a sound judicial discretion. He must look to the question of the jurisdiction of the court sitting where he is asked to remove the prisoner, to try the case. To determine where the trial is to be had, he may look into the whole case to see that the court where the party is to be removed has jurisdiction over the place, the person, and the subject-matter. There may be a want of subject-matter, either because there is no law making the act charged a crime, or because the act is not properly charged. or that the party charged has not done the act.
2. SAME-WANT OF JURISDICTION.
If the indictment contains allegations sufficient to show a crime has been committed by the party charged, it is the practice of the federal jUdges to
IN BE WOLF.
take the same as a prima facie showing that a crime has been committed by the party charged, at the place alleged, and, if nothing else appears, to order a removal of the party charged.
BUlE-CONSTRUCTION OF STATUTES IN RESTRAINT OF LIBERTY.
This is a law in restraint of liberty, and, like all laws of this character, while the very substance of the law is not to be construed away, yet it is to be strictly construed and strictly pursued.
COURTS-SUPREME COUltT OF DISTRICT OF COLUMBIA.
The supreme court of the District of Columbia has jurisdiction of an offense committed by one Indian upon another Indian. .
The prohibition against the jurisdiction of the courts of the United States to try an Indian for an offense committed on another Indian applies only when the offense is committed in 1he Indian country. When the Indian commits a crime outside the Indian country, (although that crime may be on another Indian,) he is. like any other person, ll.I1lenable to the criminal laws of the place where the crime is commItted. '1. CONSPIRAcy-REv. ST. § 5440. Conspiracy, as defined by section 5440, Rev. St., means an unlawful agreement to do some act which by some law of the United States has been made a crime. This is what is meant by agreeing to commit an offense against the United States. 8. SAME-OFFENSE IN DISTRICT OF COLUMBIA. The laws of Maryland in force on the twenty-seventh of February, 1801, are laws applicable to the District of Columbia in all cases where they have not been changed by act of congress, or in all cases where an act of congress does not apply to the subject-matter. 9. FALSE PRETENSES-CRIME IN DISTRICT OF COLUMBIA. False pretenses is a crime in the District of Columbia, both by the law of Maryland applicable to the District, and by an express statute of the District.
CONSPIRACY-OFFENSE AGAINST LAWS OF UNITED STATES.
Any conspiracy to obtain money by false pretenses in the District of Columbia is a conspiracy to commit an offense against the United States.
The petitioners in this case were, on April 9, 1886, at a term of the supreme court for the District of Columbia, indicted, together with William A. Phillips, for violation of section 2105 of the Revised Statutes; that is, for making a contract with Indians in violation of the law of the United £tates. Subsequently, on April 21, 1886, they, together with William A. Phillips, were indicted in said court for a conspiracy to commit an offense against the United States. Upon the first·named indictment a warrant was issued by Stephen Wheeler, a commissioner of the United States district and circuit court for the Western district of Arkansas, for the arrest of Wolf and Ross, who were in said district, that, as provided by section 1014 of the Revised Statutes, they might, by the order of the judge of said court, be removed to the place of the sitting of the supreme court of the District of Columbia for trial. They were arrested on the warrant of the of the marshal of the United commissioner, and, while in the States for the district, they presented to the judge of the court a petition for a writ of habeas corpus, praying for a discharge from arrest because they are citizens of the Cherokee Nation; members of aaid tribe or nation of Indiana by blood; and that in and about the things
and matters set np in the indictment to have been done by them they were officers of the Cherokee Nation, and in and about said matters they were acting in their official capacity under the laws of the Cherokee Nation, and represented her in and about the transaction alleged against them in the indictment; that they are amenable only to the courts and laws of the Cherokee Nation; that the supreme court of the District of Columbia, in which said indictment was found. and to which it is sought to remove them, has no jurisdiction to try them for the alleged offense; that the aforesaid indictment charges no offense; that it is void for uncertainty, and otherwise insufficient to give the aforesaid court of the District of Columbia jurisdiction over the persons of the petitioners; that the said court has no jurisdiction of the subject-matter, or of the persons of the petitioners. Wherefore they say they are unlawfully held and restrained of their liberty by the marshal, contrary to the constitution and laws of the United States. They pray they may be discharged. The government, by its attorney, moved for a warrant of removal of Wolf and Ross to the District of Columbia, that they might be tried on the indictment. Subsequently the indictment for conspiracy was presented to the court. William H. H. Clayton, for petitioners. E. C. Bondinot, for the United States.
PARKER, J. The question in this proceeding is, should these plLrties, Wolf and Ross, be removed to the District of Columbia' for trial on either one of these indictments? If, under the law, they should, they are not entitled to be discharged on habeas corpus. If they should not be so removed, they are entitled to a discharge, either by habeas corpus or without it. Under the law of the United States, (section 1014, Rev. St.,) "where any offender is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender is imprisoned seasonabl,. to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had." This court held in the case of U. S. v. Tlogers, 23 Fed. Rep. 658, that the judge, in acting on an application for the removal of a party charged with crime, was performing a judicial function; and in the performance of such function he may look into the proceedings of the commissioner, or the court in which the indictment was found, for the purpose of enabling him to properly determine questions pertaining to the removal, and grant or refuse the order accordingly. Under the section of the statute above referred to the judge is invested with plenary power to grant or refuse the warrant of removal, and he is but exercising sound judicial discretion when he looks into the question of jurisdiction, or into the whole case, so far as to enable him to determine where the trial is to be had. If the indictment contains
allegations sufficient to show a crime has been committed by the' party charged, it is the practice of the federal judges to take the same as a prima facie showing that a crime has been committed at the place alleged by the party charged; and, if nothing else appears, to order a removal of the party charged. But I have no doubt the judge, in his sound discretion, may go into the whole case, if necessary, to enable him to determine whether the party is to be removed from his home to a distant part of the country. This is a law in restraint of liberty, and, like all laws of this character, while the very substance of the law is not to be construed away, yet it is to be strictly construed, and strictly pursued. The government asking a removal is required to fully comply with the law. The question, then, which presents itself to the judge is, where the case is to be tried, where a trial can be had. Before a trial can be had before any court of the United States, such court must have jurisdiction over the place, the person, and the subject-matter. If there is an absence of subject-matter, the trial cannot be had. There may be an absence of subject-matter, either because there is no law declaring the act charged a crime; or because, as charged, the act is not a crime; or because the facts fail to show that the party sought to be removed committed the act charged. I shall confine myself to the indictment charging a conspiracy, because if this shows a crime committed by persons over which, and at a place where, the supreme court of the District of Columbia has jurisdiction, it would be my duty to order a removal of the petitioners to that court for trial. 1'he indictment in this case alleges this crime was committed in the District of Columbia. There is no question of the jurisdiction of the court in which the indictment was found extending over the place where the crime is alleged to have been committed. Then, the next question is, does the supreme cOl1rt of the District of Columbia have jurisdiction over the persons of petitioners? The petitioners, Wolf and Ross, are shown to be Indians by blood, members of the Cherokee Nation or tribe of Indians because of their having the blood of the race. They reside in and are a part of the Cherokee Nation or tribe of Indians. This crime is one alleged to have been committed against the Cherokee Nation of Indians, which in law is an Indian tribe. This, then, is a case of a crime committed by one Indian against another Indian. It is claimed, this being true, the case is not within the jurisdiction of the supreme court of the District of Columbia; that said conrt has no jurisdiction over the persons of defendants. Section 2145, Rev. St., provides that, "except as to crimes the punishment of which is exprel:lsly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country." Section 2146, among other things, provides that the preceding section shall not be construed to v.27F.no.8-39 .
extend to crimes committed by one Indian against the perBon or property of another Indian. - - _.. The prohibition by this section of the law of the jurisdiction of a court of the United States over a crime committed by one Indian upon another is one which is personal to the Indian, only when the crime is committed in a certain section of the country, to-wit, the Indian country. It is a prohibition which is clearly local. When a crime is committed by an Indian, although such crime may be against the person or property of another. Indian, if committed outside the Indian country, the Indian is like any other person as far as the criminal laws of the nation or the states are concerned. In a case where he has committed a crime against sllch laws, he is by them a forensic citizen, subject to the jurisdiction of the courts which administer them. Our laws govern all. They bind and protect all. They bind and protect alike all persons,-natives, foreigners, and those whose status to the United States may be one of alienage. They are, all alike subject to the criminal laws of the country, and when they commit a crime against the laws of the nation, at a place over which the courts of the nation have jurisdiction, they are subject to trial in such courts. Mr. Kent, in 1 Kent, Comm. 36, says: "Strangers are equally bound with natives to obedience to the laws of the country during the time they sojourn in it, and they are equally amenable for infractions Of the law." To the above rule there are some exceptions: First, the case of a foreign sovereign and his attendants; second, foreign embassadors, and their attendants. By the law of nations they are not subject to the laws of a country they may visit, or in which they may have a temporary domicile. Sections 124-134, Bish. Crim. Law. The other exception is one recognized as existing under the laws of the United States. It is that of an Indian committing a crime upon another Indian, in the Indian country. When an Indian is outside of that country he is entitled to the full measure of protection afforded by the laws of the nation, and if he commits a crime outside of the Indian country, whether upon one of his own race or another, he is amenable to the law of the place where the crime is committed. This proposition, to my mind, is established when stated. This, then, disposes of the proposition as to the jurisdiction of the court in which the indictment was found over the persons of petitioners. The next question is, did said court have jurisdiction over the subject.matter? This involves the query as to whether there is any subject-matter; that is, whether the act charged to have been done by them is made a crime by the laws of the United States; then, whether such crime is properly charged. The crime charged to have been committed by the petitioners is conspiracy to commit a crime against the United States, which, by section 5440, Rev. St., is defined to be a crime. By the common law a conspiracy is an agreement bf,-
tween two or more persons to do some unlawful act, or to do a lawful act in an unlawful manner. The agreement itself constitutes the offense, whether an act is done in furtherance of the object or not. Section 5440, Rev. St., is as follows: "If two or more persons conspire. either to commit any offense against the United States, or to defraud the United States in any manner, or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty. * * *"
It is manifest that to constitute a criminal offense under this section the object of the conspiracy must be to commit some offense against the United States; that is, to do some act made a crime by the laws of the United States, or to defraud the United States; and that something must be done by one or more of the conspirators to effect the object of the conspiracy. The definition of this offense would be "an agreement between two or more persons to do some act which, by the laws of the United States, is a crime, and the doing of some act, by one or more of those who had so agreed, in furtherance of or to effect the object of the agreement." To constitute a good indictment under this section, it must charge that the conspiracy was to do some act made a crime by the laws of the United States, and it must state with such reasonable certainty the acts intended to be effected or carried out by the agreement of the parties so that it can be seen the object of the conspiracy was a crime. against the United States. The conspiracy or agreement, and the doing of some act in furtherance of it, make up the offense. The object of it, however, is a requisite of the indictment. To my mind, this indictment charges an agreement between Ross, Wolf, and Phillips, and other parties unknown, to obtain from the Cherokee Nation, by false pretenses, the sum of $29,500. It charges the unlawful agreement to cheat and defraud the Cherokee Nation of the sum of $22,500. It charges the means to be used by them in cheating and defrauding the Cherokee Nation. It charges they did an act in furtherance of the unlawful agreement, or to effect the object of the conspiracy, to-wit, the said Wolf and Ross received from Dennis W. Bushyhead, who was then chief of the Cherokee Nation, a large sum of money, to-wit, the sum of $22,387.50 in lawful money of the United States. The means set out in the indictment as being the method adopted by the unlawful agreement to consummate it, show tbe purpose to have been to commit the crime of obtaining money by false pretenses. Now, is this a crime against the United States, when committed in the District of Columbia? . Congress has power, by virtue of article 1, § 8, of the constitution, to exercise exclusive legislation over the District of Columbia. Congress, by the act of the twenty-first of February, 1871, which is now embodied in section 93 of the Revised Statutes for the District of Columbia, has provided that "all laws of the United States which are