Mau-zau-mau-ne-kah v. United States

1 Bur. 16 | Wis. | 1841

Irvin, J.

At the May term, 1837, of the district court for Brown county, Mau-zau-mau-ne-hah (an Indian of the Winnebago, tribe) was indicted for .the murder of Pierre Paquette, and, at [the same term was tried and convicted and judgm.ent'.pronounced ; .to stay and reverse which a writ of errqr was, sued, out,.and the cause brought up to this court.;,

After verdict and before judgment, the prisoner made a motion in arrest of judgment upon the following grounds :

1. Because the time laid- in said indictment when said offense was committed is not laid, with sufficient and legal certainty.

2. Because said indictment alleges said offense charged in said indictment to have been committed on lands owned by the tribe of the Menomonee nation of Indians, and under the sole and exclusive jurisdiction of the United States.

3. Because said indictment alleges “the jurors” to be “for said Territory,” and does not allege them to be jurors of either Brown county, or of the counties composing the third judicial district.

4. Because said indictment does not truly state the name and style of this court.

5. The said indictment does not allege said offense to have been committed against a statute or act of congress; which were all overruled by the court.

In the order of the indictment it is best to notice the fourth objection first. By the organic law the proper style of the court would be the district court, while in the indictment it is styled “a circuit court of the said Territory of Wisconsin.” Now, as there is no such court as a circuit court of the .Territory of Wisconsin, it occurs to this court that the objection is a good one, as it is a principle of law that such a degree of certainty should be observed as to leave no difficulty in the way of the accused in the event of an acquittal and subsequent prosecution, in showing a former acquittal.

By the third objection it is further urged against the indictment that it “ alleges the jurors to be for said Territory;” and this objection is not without its weight, as the jurors must be of the county, and not from any or all parts of the Territory.

The first objection, “because the time laid in said indictment when said offense was committed is not laid with sufficient and legal certainty,” is well taken. The indictment charges the offense to have been committed ‘‘ on or about the 18th day of October.” etc., while it is held that the time and place must be added to every material fact in the indictment (Rex v. Holland, 5 Term R. 607; Rex v. Aylett, 1 id. 69; Stand. 95 a; Rex v. Haynes, 4 M. & S. 24); that is, every material fact stated in an indictment must be alleged to have been done on a particular day and at a particular place.

“A day certain must be stated.” 2 Hawk. 25, § 77-. “Any want of sufficient certainty in the indictment respecting the time, place or offense, which is material to support the charge, as the circumstance of no offense being charged will cause the judgment to be arrested.” 1 Chit. Or. Law, 539. “Any objection which would have been fatal on demurrer will be equally so on arrest of judgment, and it is therefore usually reserved till this time in order to obtain the chance of an acquittal.” 1 id. 540.

The court is of opinion that the district court erred in overruling these objections, but did not err in overruling the second and fifth objections. The decision of 'the district court is therefore reversed and the judgment arrested, and the cause remanded to the said district court, that it may .take such other and further steps therein as the law may require.