delivered the opinion of the court.
Thе plaintiffs in error, with others, were indicted in the court below at its October term, 1889, and were convicted and sentenced to suffer death, for the crime of murder alleged to have been committed on the 25th day of July, 1888, in that part of the United States designated in numerous public documents as the Public Land Strip, but conraionly called No Man’s Land. It is 167 miles in length, 34£ miles in width, lies between the 100th meridian of longitude and the-Territory of New Mexico, and is bounded on the south by that part of Texas known as the Panhandle, and by Kansas and Colorado on the north.
Tl\e prosecution was based upon section 5339 of the Revised Statutes, providing that “ every person who commits murder
The principal assignment of error is based upon these general propositions: That at the date of the alleged homicide the Public Land Strip was not within the jurisdiction of any particular state or federal district, and that no court of the United States had jurisdiction to try the alleged offence, or if any court had jurisdiction it was not the court below,, but the Circuit Court of the United States for the Northern District of Texas, or that of the District of Kansas in which the defendants were found and arrested; and that if the above-act of March 1, 1889 — under which alone this prosecution was. conducted — placed the Public Land Strip within the limits of the Eastern District'of Texas, it did not, and consistently with the Constitution of the United States could not, give the Circuit Court for that district jurisdiction of offences committed prior to its enactment.
Did Congress intend to attach the Public Land Strip to the-Eastern District of Texas for any purpose? That necessarily is the question to be first considered. And it must be determined without reference to the act of May 2, 1890, providing a temporary government for Oklahoma; for that act, while including this strip within the Territory of Oklahoma, declares-that all “ crimes committed in said Territory ” prior to its passage “ shall be tried and prosecuted, and proceeded. with until finally disposed of, in the courts now [then] having jurisdiction thereof,” as if that act had not been passed. 26 Stat. 81, 86, c. 182, §§ 1, 9. We shall be aided in the solution of the question of jurisdiction by recalling the history of the Public Land Strip, and various acts of Congress, preceding that of 1889, which are supposed to have some bearing upon this case.
The Public Land Strip was once a part of the possessions of
Congress, by an act of September 9, 1850, 9 Stat. 446, c. 49, made certain propositions to Texas, one of which was that its boundary on the north should commence at thе point where the meridian of one hundred degrees west from Greenwich is intersected by the parallel of thirty-six degrees thirty minutes north latitude, and run from that point due west to the meridian of one hundred and three degrees; thence due south to the thirty-second degree of north latitude; thence on the latter parallel to the Rio Bravo del Norte; and thence with the channel of that river to the Gulf of Mexico. This proposition was accepted by Texas. Oldham and White’s Digest Laws of Texas, p. 55. By -the same act, § 2, the eastern boundary of New Mexico was established on the one hundred and third meridian. The remaining territory of Texas, as it was when admitted into the Union, passed by that act under the jurisdiction of the United States. The Territory of Kansas was organized by the act of May 30, 1854, c. 59, § 19, 10 Stat. 277, 283, its southern line being fixed on the 37th parallel of north latitude. Thе Territory of Colorado was organized by an act approved February 28, 1861, 12 Stat. 172, c. 59, its eastern- boundary being on the 102d meridian, and its southern boundary'being on the 37th parallel of north latitude. Ib. §:1. The result of all these enactments was that the body of public lands, known as the Public Land Strip, was left outside of Texas as well as of the Territories of New Mexico, Kansas and Colorado.
An act of Congress was passed January 6, 1883, lor tbe holding at Wichita of a term of. the District Court of the United States for the District of Kansas and for other purposes, 22 Stat. 400. c. 13. By that act (§ 2)
“
all that portion of the Indian Territory lying north of the Canadian Biver and 'east of Texas and the one hundredth meridian not set apart .and occupied by the Cherokee, Creek and Seminole Indian tribes,” was annexed to the District of Kansas; and the United States District Courts at Wichita and Fort .Scott in that district were given “ exclusive original jurisdiction of all offences committed within the limits of the territory hereby annexed to said District of Kansas against any of the laws of the United States now or that may hereafter be operative therein.” It was further provided: “ § 3. That all that portion of the Indian Territory not annexed to the District of Kansas by this act, and not set apart and occupied by the Cherokee, Creek, Choctaw, Chicasaw and Seminole Indian tribes,, shall, from and after the passage of this act, be annexed to and con
Then comes the act of March 1, 1889, c. 333, above referred to, 25 Stat. 783, which, it is contended, transferred the Public-Land Strip from the Northern District to the Eastern District of Texas. By its first section a United States Court, to be held at Muscogee, is established,•“ whose jurisdiction shall extend over the Indian Territory, bounded as follows, to wit: North by the State of Kansas, east by the States of Missouri and Arkansas, south by the State of Texas, and west by the State of Texas and the Territory' of New Mexico.” It is given (§ 5) “exclusive original jurisdiction оver all offences against the laws of the United States committed within the Indian Territory as in this act defined, not punishable by death of by . imprisonment at hard labor.” That court was
The seventeenth, eighteenth and twenty-eighth sections of that act arfe as follows:
“ Sec. 17. That the Chickasaw Nation and the portion of the Choctaw Nation within the following' boundaries, to wit t Beginning on Red River at the southeast corner of the Choctaw Nation; thence north with the boundary line between the said Choctaw Nation arid the State of Arkansas, to a point where Big Creek, a tributary of-the Black Fork of the Kimishi River, crosses the said boundary line; thence westerly with Big Creek and the said Black Fork to the junction of the said Black Fork with Buffalo Creek; thence northwesterly with said Buffalo Creek to a point where the same is crossed by the old military road from Fort Smith, Arkansas, to Boggy Depot, in the Choctaw Nation; thence southwesterly with the said road to where the same crosses Rerryville Creek; thence northwesterly up said creek to where the same is crossed by the Missouri, Kansas and Texas Railway track; thence northerly up the centre of thiv main track of the said road to the South Canadian River; thence up the centre of the main channel of the said river to the western boundary line of the Chickasaw Nation, the same being the northwest corner of the said nation"; Tthence south on the boundary line between the said nation and the reservation of the Wichita Indians; thence continuing south with the boundary ,line between the said Chickasaw Nation and the reservations of the Kiowa, Comanche and Apache Indians to] Red River; thence down said river to the place of beginning; and all that portion of the Indian Territory not annexed to the District ofKansas by the act approved January sixth, eighteen hundred and eighty-three, and not set apart and occupied by the five civilized tribes, shall,.from and after the passage of this act, be annexed to and constitute a part оf the Eastern Judicial District of the State of Texas, for judicial purposes.
Sec. 18. That the counties of Lamar, Fannin, Red River and Delta of the State of Texas, and all that part of the Indian Territory attached to the said Eastern Judicial District of the State of Texas by the provisions of this act, shall constitute a division of the Eastern Judicial District of Texas; and terms of the Circuit and District Courts of the United States for the said Eastern District of the State of Texas shall be held twice in each year at thé - city of Paris, on the third Mondays in April and the.second Mondays in October.; and the United States courts herein provided to be held at Paris shall have exclusive, original jurisdiction of all offences committed against the laws of the United States.within the limits of that portion of the Indian Térrito'ry'attached to the Eastern Judicial District of the State of Texas by the provisions of this act, of • which jurisdiction is not- given by this act to the .court herein established in the Indian Territory; and all civil process, issued against persons resident in the said counties of Lamar, Fannin,-Red River and Delta, cognizable before the United States courts, shall be made returnable to the courts, respectively, to be held in the city of .Paris, Texas. And all prosecutions for offences committed in either of said last-mentioned counties shall be tried in the division of said eastern! district of which said counties form a part: Provided, That no process issued or prosecution commenced or suit instituted before tiie passage of this.act shall be in any way affected' by the provisions thereof.”
“ Sec. 28. That all laws and parts of laws inconsistent with, the provisions of this act' be, and the saíne are hereby, repealed.”
Other sections prescribe'the modes of procedure in thé court established by that act’ and. the .punishment for numerous offerees.
From this history ■ of the-Public Land- Strip it appears:
Much of the discussion by counsel was directed to the inquiry whether the act of 1883 attached the Public Land Strip to the Northern District of Texas. In view of the relations which certain Indian tribes once held to that strip, under treaties with the United States — which treaties will be referred to in another connection — there are some reasons for holding, in accordance with the contention of the government, that it was so attached to that district. But it is not necessary to decide, that point; for, howеver it might be determined, the question would remain whether the Public Land Strip was not within that portion of the Indian Territory, defined in the act of 1889, which was assigned, by that act, for certain judicial purposes, to the Eastern District of Texas. If it was, the court below had jurisdiction of the offence charged in the indictment, unless the latter act is construed as having no application to offences committed prior to its passage. The act of 1883 is chiefly'important in the present inquiry as it may serve to explain the provisions of the act of 1889.
The public documents to which reference has been made undoubtedly show that, in the opinion of many gentlemen in the legislative and executive branches of the government, the
“
Indian Territory ” did not extend further west than the one hundredth méridian, and that, even after the passage of the act of 1883 it remained unattached to any judicial district. So that, if Congress intended by the act of 1883 to annex the Public Land Strip to the Northern District of Texas, it was informed by these documents that that act was not so con
Upon a careful scrutiny of the act of 1889, giving full effect to all of its clauses, according to the reasonable meaning of the words used, yet interpreting it in the light' of the previous history of the Public Land Strip, and of the information communicated to Congress by public officers, we do not doubt that Congress intended to bring that strip within the jurisdiction of the court established for the Indian Territory, and to attach it, for limited judicial purposes, to the Eastern District of Texas; thus enabling the general government to protect its own- interests, as well as the rights of individuals. That act was so interpreted by Mr. Justice Brewer before his accession to this Bench.
In re Jackson,
40 Fed. Rep. 372. Observe, that the country over which the court established by that act was to exercise jurisdiction was not described as being east of the 100th meridian and south of Kansas, nor simply as the Indian Territory, but,
ex industria,
as the Indian Territory bounded “ north by the State of Kansas, [the southern line of that State constituting about two-thirds of the northern boundary of the Public Land Strip,] east by the States of Missouri •and Arkansas, south by the State of Texas, and west by the State of
Texas.and
the
Territory of New Mexico.”
If the act had bounded.it on the north by Kansas
and Colorado,
the description,'beyond all question, would have included the Public Land- Strip. But the description, as it is, necessarily includes that strip, because the; “ Indian Territory,”' for which the new comt, to sit at Muscogee, was .established, being bounded on the north by Kansas,
and
west, in part, by “ the Territory of
It is contended that this interpretation of tihe words' “Iridian Territory” in the act of 1889 is wholly unauthorized by anything in the history of the Public Land Strip ; for, it .is said, that there are no facts whatever that make those words at all appropriate as embracing that strip. This broad statement is scarcely justified by the facts. By the treaty оf Julv 27,1853, made and. concluded at Port Atkinson, i,n the Indian Territory, 10 .Stat. 1013, between- the Uniteid -States -and the.
There are other circumstances that are not without significance as indicating why Congress in the act of 1889 used the words “ Indian Territory,” as describing not only lands east of the 100th meridian, south of Kansas, but lands north of Texas and between that meridian and New Mexico. Among them the following may be named: 1. To a report of the commissioner of the general land office, made in 1861, was annexed a map, “ constructed from the -Public Surveys and other official sources in the general land office,” in which the Public Land Strip is included within the boundaries of the Indian Territory ; and a similar map, “ constructed from the plats and official sources of the general land office,” under the direction of Commissioner Wilson, was issued in 1867. 2. By an act of March 2,1887, Congress granted a right of way through the “ Indian Territory ” to a railroad comрany, beginning at a point on the northern line of said Territory at or near the south line of Kansas, crossed by the 101st meridian
;
thence in a southwesterly direction to El Paso, New Mexico. It could not commence at the point designated and reach El Paso by a southwesterly line -without passing through the Public Land Strip. Unless that strip was, for the purposes of that act, regarded as a part of the Indian Territory, then the route to El Paso would not pass through the Indian Territory at all. 3. 'By the treaty of May 6, 1828, with the Cherokee Indians the United States, besides setting apart for the use of that tribe 7,000,000 acres within the limits of the Indian Territory, guaranteed to that nation “ a perpetual outlet west, and free and unmolested use of all the country lying west of the western boundary” of the limits given, “and as far west as the sovereignty of the United States and their right of soil extend.” In an official communication from the commissioner of the land
These circumstances are referred to not as conclusive, nor, as in themselves, persuasive, but only to show that the Public Land Strip was regarded, at different
1
times, by public officers to be part of the Indian Territory, as commonly designated, or as having such connection with the lands east of the 100th meridian, where various tribes of Indians had been located by the United States, as made it natural that it should be placed, together with the lands between that meridian and the States of Missouri and Arkansas, not occupied by the civilized Indian tribes, undér the jurisdiction of the court established by the. act of 1889, or of some other court of the United States. Congress, it must be presumed, was not unaware of ■ the fact that the words “ Indian Territory ” had been • used by sоme to exclude, and by others to include, the Public Land Strip, and, to avoid misapprehension as to whether that strip was annexed to some judicial district, and, perhaps, for the purpose of meeting the recommendation of the Secretary of the Treasury in his. letter of May 1,1888, it speaks, in the act of 1889, of the Indian Territory, not generally, but
as therein defined.
That description, we have seen, necessarily included the Public Land Strip, because it was the only part of the public domain in that part of the United States that was bounded on
Much was said at the bar about the unreasonableness of the supposition that Congress intended to subject the people in the Public Land Strip to the jurisdiction of a court sitting’at so great a distance as Paris, Texas, rather than to one at Graham, in the Northern District of Texas,-or one at Wichita, in Kansas. Judging by the map, the- distance from the Public Land Strip to Paris is not much greater than ' to .Graham. Indeed, the facilities for reaching Paris may be quite as good as.those for reaching Graham. While the court of the United States nearest to the Public Land Strip, other than the one at Muscogee, seems-to be the District Court of Kansas, this fact cannot control, as against the natural meaning of the words of the act.
Nor do we think that the interpretation of the act of 1889 can or ought to be affected by that of 18.90, providing-a temporary government for the Territory of Oklahoma, and'enlargthe-jurisdiction of the United States'court in the Indian Territory. Oklahoma, by that act, is made to include “ all that portion of the United States
now Jcnown as the Indian
Territory, except . . . and except the unoccupied part of the Cherokee outlet,-together with that portion-of the United States known as the Public Land Strip.” The boundary of the country “ now known as the Indian Territory” and included in said Territory of Oklahoma is given, and the Public Land Strip is, separately, bounded “ east by the l’O.Oth meridian, south -by Texas, west by New Mexico, and-north by Colorado and Kansas.” This may be regarded at most as simply a declaration by Congress that the country then “ known as the Indian Territory.” did not include the Public Land Strip, and, therefore, that each should be separately described by‘its boundaries. - But that does not prove that Congress did not intend, in 1889, to include the Public Land Strip in. the “Indian Territory,”
as defined, by the act of that year.
On the contrary, the Oklahoma act, when' it bounds that Strip on the “ west by New Mexico,” tends to show that substantially similar words, used in describing the
Looking at this question in every light in which it may be considered, we repeat the expression of our opinion that the Public Land Strip, west of the 100th meridian, bounded on the south by Texas, on' the west by New Mexico, and on the north by Colorado and Kansas, was annexed by the act of 1889 to the Eastern District of Texas for such judicial purposes as by that act appertained to the court held at Paris in •that District.
Was it competent for the court below to try the defendants for the offence of murder committed prior to the passage of the act of 1889 ? We do not doubt that Congress intended to confer upon that court jurisdiction to try such cases. By the express words of the act, the courts to be held at Paris, Texas, were given exclusive original jurisdiction of “ all offences committed against the laws of the United States” within that part of the Indian Territory attached to the Eastern Judicial District .of Texas, of which jurisdiction was not given, by the same act, to the court established for that Territory. The only exception made is in the proviso to the eighteenth section, declaring, among other things, that no prosecution commenced before the passage of the act should be in any way affected by its provisions. This, in connection with the previous part of the. same section, defining the jurisdiction of the court below, necessarily imports that where no prosecution had been commenced, it should have authority to try all offences, punishable by death or imprisonment at hard labor, committed, no matter, when, within the new territory over which its jurisdiction was extended. No other interpretation can be rеasonably given to the act. If the Public Land Strip was placed by the act of 1883 in the Northern District of Texas, or if the defendants, having been apprehended in Kansas, were amenable, prior to the act of ¿1889, to the District Court in that State, the jurisdiction of the United States court of neither of those districts had attached, by the commencement of a prosecution, before that strip was annexed to the Eastern District of Texas. ’. In so interpreting the act of Congress we do not
It is contended that the act, so construed, is in violation of section two, article three, of the Constitution, supplemented by the Sixth Amendment. The former provides that “the trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” The latter provides:
“
In all criminal prosecutions, the accused shall enjoy the right to a, speedy and public trial, by an impartial jury of the State and district wherein the crime.shall have been committed, which district shall have been previously ascertained by law.” In respect to that clause' of the Sixth Amendment declaring that the “district shall have been previously ascertained by law,” it need only be said that if those words import immunity from prosecution where the district is not ascertained by law before the commission of the offence, or that the accused can only be tried in the district in which the offence was corpinitted, (such district having been established before the offence ■was committed,) that amendment has reference only to offences against the United States committed within a State.
United States
v.
Dawson,
It is said that the construction we place upon the sеcond section of article three makes it obnoxious to the
ex post facto
clause of the Constitution. In support of this position reference is made to
Kring
v.
Missouri,
At the trial below, one of the defendants’ counsel, who had been attorney general of Kansas, and who, in that capacity, made to the governor of that State a report touching the death of Gross immediately after it occurred, was called, in rebuttal, as a' Avitness for the prosecution. That report contained various statements purporting to have been made by the defendants, and which connected them with tbe killing of Orpss. Although the witness stated that the report was based upon hearsay evidence merely, Avas thrown together hastily by a stenographer, and was incorrect, and that the defendants had not me <e the statements therein attributed to theAn, certain parts of it were admitted in evidence to the jury, against the objection of the defendants. The record shoAvs that this report Avas read in evidence to show that the witness had made different statements at another time and place. And the court, in its charge, said to the jury: “ The instructions given, above aA-e limited, so far as the 'evidence is concerned, by the folloAving instructions: The portions of Attorney General Bradford’s report were admitted in evidence to be considered by you as to whether or not the statements therein contained Avere made by the parties to said Bradford, said Bradford now being attorney for the defendants, and denying the truth of the statements therein contained; arid as to whether dr not
The jury were thus informed that this report, although merely hearsay, was substantive evidence upon the issue as to whether the defendants were present at, and participated in, the killing. The representatives of the government, in this court, frankly concede, as it was their duty to do, that this action of the court below was so erroneous as to entitle the defendants to a reversal. Numerous other errors are said to have been committed at the trial to the prejudice of the defendants, but as such alleged errors may not be committed at the next trial, it is not necessary now to consider them.
For the error above mentionécl the judgment is reversed, and the cause remanded with directions to grant a new trial.