1 Indian Terr. 342 | Ct. App. Ind. Terr. | 1896
1. Appellant is a citizen of the United States, residing in the Indian Territory. To the indictment herein he pleaded in abatement that it was of no force and effect, because returned by a grand jury from which were • (xcluded, by direction of the court, members by blood of the hickasaw Tribe of Indians, duly qualified as grand jurors, 'he facts set up in the plea were admitted, the plea over-uled, and this action assigned as error. It appears from ne record that appellant was first indicted for this offense y a grand jury composed in part of Chickasaw Indians by lood; that to this indictment appellant pleaded, in abatement, that it was a nullity because of this fact, that the iourt sustained the plea, referred the case to a grand jury, from which, under the instructions of the court to the jury sommissioners, Chickasaw Indians by blood had been ex-iluded. To the indictment returned by this grand jury appellant filed the present plea. If the court’s action was srroneous, appellant can have no advantage from error thus expressly invited by him. Elliott, App. Proc. § 626. Apart
The relation of the five civilized tribes to the United States has been defined by the Supreme Court. In the case of Mackey vs Coxe, 18 How. 100, that court declared with reference to the Cherokee country: “Such country, we think, may be considered a territory of the United States, within the -act of 1812. In no respect can it be considered s f oreign state or territory, as it is within our jurisdiction, anc subject to our laws. ” In that case it was held that the laws and proceedings of the Cherokee territory, so far as thej related to rights claimed under them, should be placed upor the same footing as those of other territories in the Union that it is not a foreign, but a domestic, territory, — a terri
Such being the relation of this territory to the Union, such the status of the Indians therein, and such the power rf congress, a brief statement of the legislative provision searing upon the question will aid in its solution. The act establishing the United States Court in the Indian Territory, idopted March 1, 1889, made no provision for impaneling a jrand jury, but with reference to petit jurors enacted as follows: Section 8: “That all proceedings in said court shall be held in the English language; and bona fide male
It will be seen from this resume, that the qualification: of the petit juror as fixed by the laws of Arkansas mus yield to section 8 of the law of 1889, still in force. Unde: that section, Indians by blood, not citizens of the Unite< States, are clearly competent as petit jurors in the courts o the United States in the Indian Territory in all civil cases and in all criminal cases in which citizens of the Unite: States are not defendants. In the organization of grand ju ries in these courts, the requirements of the Arkansas la\ in the matter of electoral capacity and citizenship in th county in which the jurors may be called to serve is local! inapplicable to United States citizens in the Indian Terr: tory, for the reason that they are neither electors in sue
But it is urged in argument that this conclusion is impossible; that, in the nature of things, citizenship in the brum' must be a prerequisite to service therein as a juror. Tet, as we have seen, persons not citizens of the United states are competent petit jurors in the United States Courts n the Indian Territory. Is' it more anomalous that they hould sit as grand jurors therein? So early as 1354 it was macted in England (28 Edw. III.) that “in all manner of in-uests and proofs which be to be taken or made amongst .liens and denizens, be they merchants or other, as well be-ore the mayor of the staple as before any other justices or uinisters, although the king be party, the one half of the nquest or proof shall be denizens, and the other half aliens, f so many aliens or foreigners be in the town or place where uch inquest or proof is to be taken. * * *” This statute ras held to be in force in Pennsylvania by -virtue of a law >roviding that “such of the statutes as have been in force in he late province of Pennsylvania Should remain in force ntil altered by the legislature;” and a challenge to the rray in the case of four Italians charged with murder was ustaified, and a tales de mediatate lingua awarded. Respublica vs Mesca, 1 Dall. 73. It is not suggested that this fcatute is in force here, but it is referred to for the purpose f showing that the admission of persons not citizens, as irors in the courts of the country, is not strange and un-recedented, but goes back almost to the beginning of our eriod of written law. In many states, under constitutional
This being the condition of the law affecting the ques tion, their being neither express legislative direction render ing Indians by blood, not citizens, competent as grand ju rors^ nor inhibitions against their serving in such capacity the question of their competency, when in other respect: qualified as required by law, should be determined by th< relation of the territory and members of the five civilizec tribes to the Union, and by the general legislative policy o the government touching the question, if such has been man ifested. What the relation of these tribes and their memb ers to this government is has already been shown. On th other hand, the legislative policy towards the question is we think, clear. Congress, when providing for petit jurors recognized the intolerable hardship of bringing the Indian in their own country, as litigants in civil actions, into court which should pass - upon their highest rights, but exclud them from its juries. It prevented this injustice by rendei ing them competent as jurors. Every consideration of justic requires that, in the absence of express direction, the polic; thus indicated should be extended to the organization c
2. Appellant is indicted for an offense not defined by statute, .but by the common law. The act of congress of May 2, 1890, adopted chapter 20 (title “Common Law”) of Mansfield’s Digest of the Laws of Arkansas, subject to the Limitation when not locally inapplicable or in conflict with that act or with any law of congress relating to the subjects mentioned. Section 566,. c. 20, Mansf. Dig., is as follows: “The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British parliament in aid of or to supply the defects of the common aw made prior to the fourth year of James I., that are applicable to our own form of government, of a general nature, and not local to that kingdom, and not inconsistent with the :onstitution and laws of the United States, or the constitu-ion and laws of this state, shall be the rule of decision in his state, -unless altered or repealed by the general as-¡embly in this state.” Section 567. Id.: “In cases of crimes >nd misdemeanors committed in this state, the punishment >f which has not been provided for by statute, the court hav-ng the jurisdiction thereof shall proceed to punish the ffender under the provisions of the common or statute law iut in force in this state by this act, but the punishment in
3. The indictment was filed on March 10, 1896. I alleged the commission of the offense on the 1st day o: February, 1896, and on divers other days and times betweer said day and the day of filing the indictment. The evidence fails to show the commission of the offense between the above dates, but shows its commission prior thereto. It if urged that the proof under the indictment is inadequate te sustain the conviction. There are authorities which sup port this contention. Com. vs Briggs, 11 Metc. (Mass.) 573
These remarks dispose also of the objection to the Imission of testimony showing the commission of the offense rior to the dates alleged in the indictment.
4. The definition of a disorderly house, and the state-ent in the court’s charge as to when the same might be eld in law a common nuisance, is supported by the ópinion
We have considered the other errors assigned, andw find none for which the judgment should be reversed. T1 evidence is adequate to support the verdict. The judgmei is affirmed.