No. 4680 | 8th Cir. | May 7, 1917
Lead Opinion
This is an appeal from an order denying Jack Collins a writ of habeas corpus. The petitioner had been cpnvicted and sentenced for introducing and carrying intoxicating liquor into Muskogee county, Old., and the Eastern judicial district of that state. The indictment described the county and district as being a “portion of the Indian country of the said United States,” and charged the introduction and carrying of the liquor “into1 said Indian country and into the county aforesaid from without such Indian country; * * * the said county and district having been a portion of the territory of the said United States known as Indian Territory.” The sentence was imprisonment for three years. On writ of error the sentence was affirmed by this court. Collins v. United States, 135 C.C.A. 342" court="8th Cir." date_filed="1914-11-10" href="https://app.midpage.ai/document/collins-v-united-states-8794248?utm_source=webapp" opinion_id="8794248">135 C. C. A. 342, 219 Fed. 670. A rehearing was denied (135 C. C. A. 344, 219 Fed. 672); and a writ of certiorari was denied by the Supreme Court (238 U. S. 625, 35 Sup. Ct. 663, 59 L. Ed. 1495). The sufficiency of the indictment and of the evidence to sustain the verdict was not properly challenged before us, and was therefore not considered.
“Wlietlier the offense is sufficiently alleged in the indictment is another question, which, on familiar grounds, is not a proper subject-matter for inquiry on habeas corpus.” i
Joplin Mercantile Co. v. United States, 236 U.S. 531" court="SCOTUS" date_filed="1915-02-23" href="https://app.midpage.ai/document/joplin-mercantile-co-v-united-states-98384?utm_source=webapp" opinion_id="98384">236 U. S. 531, 35 Sup. Ct. 291, 59 L. Ed. 705" court="SCOTUS" date_filed="1915-02-23" href="https://app.midpage.ai/document/joplin-mercantile-co-v-united-states-98384?utm_source=webapp" opinion_id="98384">59 L. Ed. 705, is relied on. It arose on certiorari to review a judgment of conviction, not on habeas corpus, and is not in point.
Now, let us look at the indictment, bearing in mind the very narrow scope of our power in habeas corpus. The indictment of petitioner clearly conformed to the general terms of the original act of 1895. It charged an introduction and carrying of liquor into Muskogee county and the Eastern district of Oklahoma, which were averred to be Indian country and a part of what was formerly Indian Territory, “from without such Indian country.” “Without” is anywhere outside. True, the term included the part of the state that was formerly Oklahoma territory; but it also embraced the states and countries beyond. It was broad enough to signify any state other than Oklahoma as the initial point of the carrying into what was once Indian Territory.
The order is affirmed.
Dissenting Opinion
(dissenting). When the indictment in this case was drawn, and when Jack Collins was tried, the only offense
The term “Indian country” was not and is not synonymous with Indian territory, nor with that part of Oklahoma which was formerly in Indian Territory. Indian country is all the country declared to be such by Act June 30, 1834, c. 161, to winch the Indians retained their original title, in the absence of some different provision by treaty or act of Congress, and it includes much country in many states outside the state of Oklahoma. Evans v. Victor, 204 F. 361" court="8th Cir." date_filed="1913-04-17" href="https://app.midpage.ai/document/evans-v-victor-8787805?utm_source=webapp" opinion_id="8787805">204 Fed. 361, 365, 122 C. C. A. 531, 535, and the cases there cited.
The question in this case is not whether or not the trial court had jurisdiction to try Collins and to sentence him to imprisonment under this indictment. That the indictment was sufficient to> give the court jursdictiou to try him and to sentence him to imprisonment for two years under the act of 1892, as amended by the act of 1897, may be conceded. The only question in this case is: Did that court have jurisdiction under this indictment to sentence him to imprisonment for three years under the act of 1895, for it certainly had no such power under the act of 1892, or the act of 1897.
The excess of a sentence beyond the jurisdiction of the court which renders it, in a case in which it has ample jurisdiction of the case and of the parties, is as void as a judgment in a case in which the court has no jursdiction, and a prisoner held under such excess alone is entitled to his relief by writ of habeas corpus. Ex parte Lange, 18 Wall. 163" court="SCOTUS" date_filed="1874-01-30" href="https://app.midpage.ai/document/ex-parte-lange-88804?utm_source=webapp" opinion_id="88804">18 Wall. 163, 176, 178, 21 L. Ed. 872" court="SCOTUS" date_filed="1874-01-30" href="https://app.midpage.ai/document/ex-parte-lange-88804?utm_source=webapp" opinion_id="88804">21 L. Ed. 872; Munson v. McClaughry, 198 F. 72" court="8th Cir." date_filed="1912-07-15" href="https://app.midpage.ai/document/munson-v-mcclaughry-8784340?utm_source=webapp" opinion_id="8784340">198 Fed. 72, 77, 117 C. C. A. 180, 185, 42 L. R. A. (N. S.) 302, and the cases there cited; O’Brien v. McClaughry, 209 F. 816" court="8th Cir." date_filed="1913-12-02" href="https://app.midpage.ai/document/obrien-v-mcclaughry-8790132?utm_source=webapp" opinion_id="8790132">209 Fed. 816, 820, 126 C. C. A. 540, 544. In Ex parte Parks, 93 U.S. 18" court="SCOTUS" date_filed="1876-10-23" href="https://app.midpage.ai/document/ex-parte-parks-89336?utm_source=webapp" opinion_id="89336">93 U. S. 18, 23, 23 L. Ed. 787, the Supreme Court said:
“The writ ought not to be issued, or, if issued, the prisoner should at once be remanded, if the court below had jurisdiction of the offense, and did no act beyond the powers conferred upon it. The court will look into the proceedings so far as to determine this question. If it finds that the court*500 below bas transcended its powers, it will grant tbe writ and discharge the prisoner, even after judgment.”
And the court does transcend its powers when it sentences the accused to a longer term of imprisonment than the law prescribes for the offense with which he is charged in the indictment. In the case of Hans Nielsen, Petitioner, 131 U.S. 176" court="SCOTUS" date_filed="1889-05-13" href="https://app.midpage.ai/document/nielsen-92534?utm_source=webapp" opinion_id="92534">131 U. S. 176, 183, 9 Sup. Ct. 672, 674, 33 L. Ed. 118" court="SCOTUS" date_filed="1889-05-13" href="https://app.midpage.ai/document/nielsen-92534?utm_source=webapp" opinion_id="92534">33 L. Ed. 118, that court said:
“It is true that, in the Case of Snow, we laid emphasis on the fact that the double conviction for the same offense appeared on the face of the judgment'; but if it appears in the indictment, or anywhere else in the record (of which judgment is only a part), it is sufficient.”
A comparison of the two laws—(1) section 2139, as amended by the acts of 1892 and 1897, under which a sentence of imprisonment for not exceeding two years might be imposed, which will be termed the two-year law; and (2) the act of 1895, under which a sentence of imprisonment for not exceeding five years might be imposed—with the indictment has convinced me that this indictment did not charge the offense denounced by the five-year statute, therefore did not invoke the jurisdiction of the trial court to inflict an imprisonment of more than two years, and hence that the excess of its sentence beyond the two years’ imprisonment permitted by the two-year statute was beyond its jurisdiction and void. The Supreme Court had occasion to compare these two laws with the indictment in the case of Joplin Mercantile Co. v. United States, 236 U. S. 536, 35 Sup. Ct. 291, 59 L. Ed. 705" court="SCOTUS" date_filed="1915-02-23" href="https://app.midpage.ai/document/joplin-mercantile-co-v-united-states-98384?utm_source=webapp" opinion_id="98384">59 L. Ed. 705. The object of the prosecution in this case was, as it was in that case, to punish an offense which must have had reference to one or the other of the two distinct prohibitions contained in these two laws. “The one,” said the Supreme Court, “is that arising from Act July 23, 1892, c. 234, 27 Stat. 260, amending section 2139, Rev. Stat., and amended in its turn by Act Jan. 30, 1897, c. 109, 29 Stat. 506. The other is section 8 of Act March 1, 1895, c. 145, 28 Stat. 693. These are set forth in chronological order in 225 U. S. 671 [32 Sup. Ct. 842, 56 L. Ed. 1261" court="SCOTUS" date_filed="1912-04-08" href="https://app.midpage.ai/document/de-galard-de-brassac-de-bearn-v-de-bearn-8142581?utm_source=webapp" opinion_id="8142581">56 L. Ed. 1261]. The distinction now pertinent is that, under the act of 1897: ‘Any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor * * * or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, which term shall include any Indian allotment while the title to the same shall be held in trust by the government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be punished,’ etc.; while the act of 1895 declares: ‘That any person, * * * who shall, in said [Indian] Territory, manufacture * * * any vinous, malt, or fermented liquors, or any other intoxicating drinks * * * or who shall carry or in any manner have carried, into said territory any such liquors or drinks * * * shall, upon conviction thereof, be punished,’ etc. The former has to do with the introduction of liquor into the ‘Indian country’; the latter relates, not to the Indian country as such, but to the Indian Territory as a whole, irrespective of whether it, or any particular part of it, remained ‘Indian country.’ ” The italics in the above quotation are those of the Supreme Court. •
That Jack Collins, in the comity and district in which he was tried, “said county and district then and there being a portion of the Indian country of the said United States, did, at the time and place aforesaid, unlawfully, willfully, knowingly, and feloniously, introduce and carry into said Indian country and into the county aforesaid, from without such Indian country, one quart of malt, vinous, spirituous, distilled, ardent, and intoxicating liquor, to wit, whisky and beer, the said county and district having been a portion of the territory of the said United Stales known as Indian Territory.”
There can be no- doubt that this indictment charges the introduction of liquors into the Indian country from without the Indian country, and therefore an offense under the two-year statute, which, says the Supreme Court, “has to do- with introduction of liquor into the ‘Indian country.’ ” - And as the Supreme Co-urt also says that the five-year statute “relates, not to the Indian country as such, but to the Indian Territory as a whole, irrespective of whether it or any particular part o f it remained ‘Indian country,’ ” the statement in the indictment that the liquor was introduced from without the Indian country was not a statement that it was introduced from without the State of Oklahoma into that part of Oklahoma that was formerly a part of the Indian Territory, and as there was uo such averment or statement of its introduction from without that state in the indictment the conclusion is to my mind irresistible that the indictment utterly failed to- charge an offense under the five-year statute, and left the court without jurisdiction to impose a sentence in excess of an imprisonment of two years for the simple introduction of liquors into the Indian country under the two-year statute.
Notwithstanding the view of the majority that the case of Joplin Mercantile Company v. United States, 236 U. S. 536, 537, 35 Sup. Ct. 291, 59 L. Ed. 705" court="SCOTUS" date_filed="1915-02-23" href="https://app.midpage.ai/document/joplin-mercantile-co-v-united-states-98384?utm_source=webapp" opinion_id="98384">59 L. Ed. 705, is not in point in this case, it seems to- me to he, and the conclusion I have reached appears to me to he abundantly sustained by the opinion in that case and to derive some support from
“introducing intoxicating liquors into the Indian country which was formerly the Indian Territory and now is included in a portion of the state of Oklahoma, and into the city of Tulsa, Tulsa county, Oklahoma, which was formerly within and is now a part of what is known as the Indian country, and into other parts and portions of that part of Oklahoma which was within the Indian country.”
On this indictment the defendants were tried, convicted, and sentenced. Subsequently a motion in arrest of judgment was denied, and a writ of error was sued out of this court, “where,” says the Supreme Court, “the only question raised was whether die indictment charged an offense against the laws offdhe United States; neither the evidence nor the charge of the trial court beirig brought up.” 236 U. S. 535, 35 Sup. Ct. 291, 59 L. Ed. 705. This court affirmed the judgment below, and the Supreme Court took the case by writ of certiorari and considered nothing but the sufficiency of the indictment. It held that the indictment failed to charge any offense under the five-year statute, because it contained no averment that the liquors were introduced from without the state of Oklahoma, but that it charged the offense of introducing liquors into Indian country in violation of the two-year statute. On tire question which, in the case at bar, determines the jurisdiction of the court below to impose the excess of the sentence challenged beyond the two years permissible under the two-year statute, that court said:
“That clause of the indictment which sets forth the conspiracy does not in terms allege, as a part of it, that the liquor was to be brought from without the state of Oklahoma; nor does this clause refer, for light upon its meaning, to the clauses that set forth the overt acts. Hence we do not think the latter clauses can be resorted to in aid of the averments of the former.”
After stating in a few words the reason why the latter clauses regarding the overt acts were immaterial to the decision of the question, the court continued:
“We therefore think the Court of Appeals properly treated this indictment as not charging that the liquors were to be introduced from another state,*503 and correctly assumed, in favor of the accused (supposing the law makes a distinction), that the design attributed to them looked only to intrastate commerce in intoxicants. The suggestion of the government that the omission of a distinct averment that the conspiracy was to introduce liquors from without the state did not prejudice petitioners, and should be regarded after verdict as a defect in form, to be ignored under section 1025, Revised Statutes, cannot be accepted, since we have before us only the strict record, and therefore cannot say that the trial proceeded upon a different theory from that indicated by the indictment, or that its averments were supplemented by the proofs.”
For the same reasons stated here by the Supreme Coprt, I cannot fail to think that the indictment under consideration in this case ought to be treated as not charging that the liquors there mentioned were introduced from without the state of Oklahoma, and that lite suggestion that the omission of the averment, indispensable to the charge of the offense at ail, that Collins introduced the liquors from without the state, was a mere immaterial negligible defect, ought not to be indulged to create a charge which I am unable to find in the indictment, and to prolong the punishment of the petitioner, when the general rules are that the accused, until proved guilty, is presumed to be innocent of offenses not charged as well as those charged against him, and that he ought not to be punished, even when a reasonable doubt of his guilt exists.
P'or these reasons it seems to me that the trial court was without jurisdiction to impose the three years of imprisonment, and, as the petitioner has already served his two years, I am in favor of reversing the order and decree below, and of discharging him from the custody of the warden of the penitentiary.