THE PEOPLE, Respondent, v. RAYNA TOM CARMEN, Appellant.
Crim. No. 5286
In Bank. Supreme Court of California
Aug. 17, 1954
September 16, 1954
43 Cal. 2d 342
Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, Winslow Christian, Wallace G. Colthurst and Arlo E. Smith, Deputy Attorneys General, Andrew J. Eyman, Special Deputy Attorney General, Walter L. Chandler, District Attorney (Madera), and George R. McClenahan, Deputy District Attorney, for Respondent.
SHENK, Acting C. J.—A rehearing was granted to give further consideration to the question of receiving additional evidence on appeal in death penalty cases. For reasons hereinafter stated we have concluded that it may not be so received.
The defendant pleaded not guilty and not guilty by reason of insanity to a charge of the murder of Wilbur McSwain. One jury found him guilty of first degree murder, without recommendation, and another found him sane. The judgment sentenced him to death, and the case is here on automatic appeal. There was no motion for a new trial.
The defendant was previously tried on the same charge and found guilty of murder. At that trial he was also found guilty, under a second count, of assault with intent to murder Alvin McSwain, the brother of Wilbur. On appeal this court reversed the judgment of conviction of murder for refusal to give manslaughter instructions and because of the giving of erroneous instructions on first degree murder, but the judgment of conviction on the second count was affirmed. (People v. Carmen, 36 Cal.2d 768 [228 P.2d 281].)
The evidence at the second trial was substantially the same as at the first. Briefly summarized it shows that on the evening of April 22, 1950, the defendant drove his car to a dance at Yosemite Forks in Madera County. Riding with him were Ella McSwain, Wilbur McSwain, Josephine Davis and Henry Chenot. Alvin McSwain was also at the dance. After the dance many of those attending, including the above mentioned persons, went to a place known as Kilroy‘s Last Stand, where soft drinks and sandwiches were sold. An
The second trial was solely for the murder of Wilbur, and the defendant urges that it was error to admit evidence of the shooting of Alvin, because, he asserts, the assault was an independent offense other than that for which he was being tried. The shooting of Alvin occurred a few seconds after the defendant shot Wilbur. Alvin and Wilbur were both of the same family, and the defendant had threatened to kill the whole family. These and other circumstances of the case clearly show that the shooting of Alvin was a part of the same transaction in which Wilbur was killed, and evidence pertaining to it was therefore admissible. (
In connection with the admission of the foregoing evidence, the defendant asserts that the court improperly instructed the jury. After pointing out to the jury that such evidence had been admitted the court went on to say that it was admitted for a limited purpose only, “not to prove distinct offenses or continual criminality, but for such bearing, if any, as it might have on the question whether the defendant is innocent or guilty of the crime charged against him in this action. You are not permitted to consider that evidence for any other purpose. . . . The value, if any, of such evidence depends on whether or not it tends to show: (1) the identity of the person who committed the alleged crime in question in this case, if it was committed; or (2) that the defendant had a motive for the commission of the offense charged against him in this action; or (3) that the defendant entertained the intent which is a necessary element of the alleged crime for which he now is on trial, as pointed out in other of my instructions; or (4) that the defendant was familiar with the means alleged to have been used in the commission of the crime of which he is accused in this action; or (5) that the defendant possessed knowledge that might have been useful in the commission of the crime for which he is now on trial; or (6) that there existed in the mind of the defendant a plan, scheme, system or design, into which fitted the commission of the offense for which he now is on trial.” Thereafter the court stated that the jury could consider the evidence for purposes (4) and (5), but could not consider it in connection with those purposes where the other offense involved was a “later offense.” The defendant‘s point seems to be that the People knew that the Alvin shooting was a later offense than the killing of Wilbur and therefore should not have offered the instruction embracing (4) and (5). The instruction was somewhat inconsistent, for it said, in the listing of purposes, that the Alvin affair could be considered and, afterwards, that a later offense could not be considered. If there was error, however, we fail to see how it could have prejudiced the defendant. He admitted on the witness stand that he fired the shot which killed Wilbur and that he was thoroughly familiar with the manner of operating the gun, and, accordingly, there was no serious question at the trial with respect to the matters referred to in parts (4) and (5) of the instruction.
On the trial of the plea of not guilty by reason of insanity, the court, over the defendant‘s objection, permitted the prosecuting attorney to open the case and to make the opening argument. Counsel for the defendant declined to argue the case on the insanity plea, and that issue was submitted to the jury after appropriate instructions. The defendant claims that, inasmuch as he had the burden of proof, such order of proof and argument constituted error. That question appears to be settled. “No section of the Penal Code specifically directs the order of the trial upon a plea of not guilty by reason of insanity, and it has been repeatedly held that defendant has no right to open and close the argument to the jury (People v. Hickman (1928), 204 Cal. 470, 482 [268 P. 909, 270 P. 1117]; People v. Goold (1932), 215 Cal. 763, 766 [12 P.2d 958]; People v. Kimball (1936), 5 Cal.2d 608, 611 [55 P.2d 483]; see, also, People v. Hardy (1948), 33 Cal.2d 52, 65-66 [198 P.2d 865]) although the trial court may permit him to do so (see People v. Lee (1930), 108 Cal. App. 609, 613 [291 P. 887]).” (People v. Letourneau, 34 Cal.2d 478, 495 [211 P.2d 865].)
At the time set for oral argument of this appeal Mr. Robert Peckham, an assistant United States attorney, appeared before this court and stated that there was reason to believe that the crime was committed in “Indian country” as that term is defined by the federal statutes, that the defendant is an Indian and, therefore, that the United States may have exclusive jurisdiction over the matter. Subsequently defendant filed an application to produce additional evidence on appeal to show that he is an Indian and that the land on which the crime was committed was an Indian allotment. Thereafter the People filed a document, signed by the prosecution alone, which was entitled “Stipulation re Application to Produce Evidence.” It stated, among other things, that defendant is an Indian but is a citizen of California who has never been subject to any restrictions on account of his race and has at all times enjoyed all the rights and privileges of any other citizen, that decedent Wilbur McSwain was an Indian, that letters patent to the lots where the crime was committed were issued by the United States to Maggie Jim, an Indian, that the letters patent are still held in trust by the United States of America and that the lots have never been part of an Indian reservation. The defendant signed and filed a separate so-called “stipulation” in which he disagreed with some of the matters set forth in the document filed by the People but stated that defendant and Wilbur McSwain were Indians, that the alleged crime took place on lands allotted by the United States in trust for Maggie Jim, an Indian, and that the lands are still held in trust.
The briefs of the parties have presented numerous questions concerning the propriety of considering a stipulation of facts made on appeal, the meaning of the particular documents filed by the parties, the construction and effect of the pertinent federal statutes, and the constitutionality of such statutes if they are interpreted to vest exclusive jurisdiction over the crime in the federal government. We have concluded that the proposed offer to produce additional evidence on the appeal should be denied. Furthermore, even assuming that additional evidence could be received on appeal in this class of cases by stipulation or otherwise, the facts stated in the so-called “stipulation” as well as shown in the entire record are insufficient to show exclusive jurisdiction in the federal courts.
The evidence presented at the trial is not sufficient to permit a determination that there is exclusive federal jurisdiction in the present case, and we do not pass on the question of what remedies may be available to the defendant to show alleged lack of jurisdiction in the state court. Nothing in the record indicates that the location of the crime was “Indian country” within the meaning of any of the statutes which have been cited. (See, e.g.,
In People v. Pratt, 26 Cal. App. 2d 618, 622-623 [80 P.2d 87], there is language, unnecessary to the decision, to the effect that the principles of the cases dealing with emancipated Indians do not apply where the defendant has committed murder or one of the other major crimes designated in what is now
The two documents entitled “stipulation,” even if given the effect of a stipulation to the extent that they agree on some of the facts, are likewise insufficient to bring this case within the cited statutes pertaining to federal jurisdiction over offenses committed by or against Indians in Indian country. Insofar as the status of the defendant and Wilbur McSwain as Indians is concerned, the stipulation adds nothing to the evidence produced at trial because it, in effect, relates merely to the race and descent of these persons and does not disclose whether they were Indians of the type subject to federal jurisdiction or whether they were emancipated.
Although the stipulation indicates that the crime was committed on allotment lands held in trust for an Indian and thus may have taken place in “Indian country” (
Finally, the defendant asserts that the penalty imposed should be reduced. That cannot be done, however, in the absence of prejudicial error. (People v. Thomas, 37 Cal.2d 74 [230 P.2d 351]; People v. Odle, 37 Cal.2d 52 [230 P.2d 345].) Here there is none.
The application to produce additional evidence is denied. The judgment is affirmed.
Edmonds, J., Traynor, J., Spence, J., and Peek, J. pro tem.,* concurred.
SCHAUER, J.—I concur in the judgment.
I agree that the evidence in the record is prima facie sufficient to prove that the state courts of California possess and have exercised jurisdiction over both the defendant and the crime of which he has been convicted, and I further agree that there is no stipulation before the court establishing facts sufficient to show that the state courts of California lack jurisdiction either in respect to the defendant or the crime.
CARTER, J.—I dissent.
I agree with the majority that “where trial by jury is a matter of right” and a case has been tried by a jury, an appellate court cannot receive additional evidence on appeal. It does not necessarily follow, however, that an appellate court cannot consider stipulations and admissions of jurisdictional facts which are not part of the record. Where the parties join in a stipulation of facts on appeal the court is not thereby required to determine factual matters but remains strictly within its constitutional jurisdiction of deciding “questions of law alone.” Although a number of cases, both in California and other jurisdictions, have considered the question of stipulations and admissions of fact on appeal, no case has been found that adequately discusses this problem.
The closest California case is People v. Mooney, 176 Cal. 105, 107 [167 P. 696], which involved an appeal from a conviction of murder where the death penalty was imposed.
The only other California case that appears to be in point is People v. Mesa, 121 Cal. App. 345, 347-348 [8 P.2d 920]. There the court held that “the statements of counsel and the admission of the attorney-general in their briefs for the purpose of supplying the omissions in the record” could not be considered to establish who requested a particular instruction which defendant attacked on appeal. The appellate jurisdiction of District Courts of Appeal in criminal cases, like that of this court, is limited to determination of “questions of law alone” (
In other jurisdictions the cases are in conflict as to whether stipulations or admissions on appeal as to matters not in the record can be considered. Some cases hold that they will be considered. (State v. Goodager, 56 Or. 198 [108 P. 185] [admission on appeal concerning part of building where killing occurred]; Commonwealth v. Jester, 256 Pa. 441 [100 A. 993, 994] [affidavits of defendant admitted by state to be substantially correct]; see State v. Bogen, 13 N.J. 137 [98 A.2d 295, 298-299]; State v. Miller, 187 S.C. 271 [197 S.E. 310, 311].) Other cases hold that they will not be considered. (Hunter v. State, 43 Ariz. 269 [30 P.2d 499, 501] [statement on appeal made by defendant conceded to be true by the attorney general]; Adams v. State, 44 Ga. App. 573 [162 S.E. 164]; People v. Loftus, 400 Ill. 432 [81 N.E.2d 495, 498-499].) In none of the out-of-state cases, however, is there any discussion of the principles involved in determining whether or not a stipulation or admission on appeal will be considered, and none of them appears to involve jurisdictional facts.
While the majority refuses to decide the point, the attorney general argues that this court cannot consider stipulations on appeal as to jurisdictional facts because, he asserts, jurisdiction is a question of fact for the jury and it would be a deprivation of the state‘s right of jury trial for the court to consider any evidence not presented to the jury. In this connection he argues that the state produced evidence to show that defendant committed a crime in California and asserts that all questions relating to federal jurisdiction are matters of defense. He relies on People v. Collins, supra, 105 Cal. 504, 509, where it was held that federal jurisdiction over crimes committed on property owned by the United States is a question of fact and that, therefore, an information which merely alleged that a crime was committed within a certain county was sufficient although it failed to allege that the crime was not committed in those areas of the county subject to exclusive federal jurisdiction. (See also People v. Megladdery, 40 Cal. App. 2d 748, 762-764 [106 P.2d 84].) Under the principles set forth above, however, it would seem that once the necessary facts are established by stipulation of the parties, the question of whether there is exclusive federal jurisdiction over the crime would be solely a matter of law. If the parties have established the jurisdictional facts by stipulation, they would not be deprived of their right to a jury determination because no question for the jury would remain, and they would have, in effect, waived any objection to lack of a jury trial on such facts.
As a practical matter, where the essential facts can be settled by stipulation of the parties, and where all questions of law can be determined on the appeal, it would seem un-
As a preliminary matter, the attorney general now argues that “the parties have not entered into a stipulation of facts.” Each party filed a separate “stipulation” herein, and the two documents are different in substance and language with respect to many items. Stipulations, of course, are contracts upon the terms of which the parties must come to an agreement. (See 23 Cal. Jur. 822.) Attached to the document offered by the People, however, is a copy of a letter to defendant‘s counsel stating that “this is as far as we can go in any stipulation of facts” and that if defendant had any objection to “any of the facts appearing in the stipulation or if you join in the stipulation we would appreciate it if you would advise the court in the premises.” This letter seems to have left it open for defendant to accept or reject the People‘s stipulation in whole or in part. The defendant‘s stipulation was in response to that of the People and agreed with some items but expressly rejected others. Accordingly, I will proceed upon the theory that the parties have made a stipulation with respect to all matters as to which the two documents are substantially in accord.
It is stated in each document that defendant is an Indian, but this must be interpreted to refer only to his race and blood because the People qualified their stipulation with the statement that defendant has never been subject to any restrictions on account of his race and has at all times enjoyed all the rights and privileges of any other citizen of California. Both documents state that Wilbur Dan McSwain, the victim, “was an Indian,” but, unlike the statement relating to defendant, no qualification is made by the People with respect to the status of McSwain. For this reason we should probably treat McSwain as an “Indian” not only as far as race and descent are concerned but also for the purposes of the federal statutes which use the word “Indian.” Some indication of the intent of the parties in using the word “Indian” may be derived from the fact that the documents submitted by both parties were entitled “stipulation [regarding] application to produce evidence,” since the “application” which is thus referred to clearly indicates that the word “Indian” was there
The first question which we must consider is whether the federal government in 1950, the year of the alleged murder, had exclusive jurisdiction over crimes of this type in any case involving Indians and Indian country. The People contend that California then had at least concurrent jurisdiction in such situations, and they assert that the applicable federal statutes should not be interpreted to give the federal laws and courts exclusive control and that the wardship theory of federal power over Indians is outmoded. They also urge, in this connection, that exclusive federal jurisdiction is inconsistent with federal legislation, adopted in 1924, which provides that all Indians born in the United States are citizens.
On behalf of defendant, it is contended that the state court was without jurisdiction over him in that exclusive jurisdiction in such cases is vested in the United States and its courts by reason of
“This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulation, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” (June 25, 1948, ch. 645, 62 Stats. 757.)
I have concluded that defendant‘s position must be sustained. The sections define “Indian country” as including an Indian allotment, the Indian title to which has not been extinguished and as being within the exclusive jurisdiction of the United States and that crimes committed by Indians against other Indians shall be punished under the general laws of the United States.
The People argue that defendant was a citizen of the United States and of this state and for that reason, our courts have jurisdiction. That contention was answered adversely to the People in United States v. Nice, 241 U.S. 591 [36 S.Ct. 696, 60 L.Ed. 1192], wherein it was said (p. 598): “Citizenship is not incompatible with . . . continued guardianship, and so may be conferred without completely emancipating the Indians or placing them beyond the reach of congressional regulations adopted for their protection.”
The status of Indians as citizens seems immaterial in determining whether the federal government has exclusive jurisdiction over offenses in Indian country. In 1924 Congress provided that all Indians born in the United States are citizens of the United States. (
In Hallowell v. United States, supra, 221 U.S. 317, 324, the defendant was an Omaha Indian residing in Nebraska. He was a citizen of the United States and of the state in which he resided. He contended at the trial that the state court had jurisdiction. The Supreme Court held that the federal courts had jurisdiction and said: “. . . [T]he United States had not parted with the title to the lands, but still held them in trust for the Indians. In that situation its power to make rules and regulations respecting such territory was ample.”
It is contended by the People that this state had jurisdiction in that it had never ceded jurisdiction over the land on which the crime occurred. In United States v. McGowan, 302 U.S. 535 [58 S.Ct. 286, 82 L.Ed. 410], it was held that the principle of exclusive federal jurisdiction over crimes involving Indians on Indian reservations is not based on a cession of such jurisdiction by the states to the federal government but is based on the constitutional authority of the United States to deal with the Indians. It is argued by the People that whether the defendant was a ward of the United States (as held in United States v. Kagama, 118 U.S. 375 [6 S.Ct. 1109, 30 L.Ed. 228]) was a question of fact which should have been raised at one of defendant‘s two trials, and that the burden was on defendant to prove such wardship, or jurisdiction, as a defense. In United States v. Rogers, 23 F. 658, it was held that the matter of jurisdiction in a criminal proceeding is never presumed; that it must always be proved and is never waived as a defense. It was further held there that the question of jurisdiction can be raised at any stage of the proceeding. (See also United States v. Anderson, 60 F.Supp. 649, 650, holding that if the court is without jurisdiction of the subject matter, its proceeding is a nullity.) “Even the consent of the accused cannot confer jurisdiction, and it is an issue that can be made at any stage of the proceedings, . . .” In Costa v. Banta (a civil case), 98 Cal. App. 2d 181, 182 [219 P.2d 478], it was held that “Although the jurisdiction of that court was not questioned during the trial, it is well established that questions of jurisdiction are never waived and may be raised for the first time on appeal.” In State v. Pepion (1951), 125 Mont. 13 [230 P.2d 961], the defendant, an Indian, committed larceny within the limits of an Indian reservation. The court held that he was subject
The People contend that
It is next contended that the United States cannot claim exclusive jurisdiction over crimes committed by Indians in Indian country and that the case of United States v. Kagama, supra, 118 U.S. 375, with its wardship theory, is obsolete. From this it is argued that because Indians are now citizens of the United States and of the state in which they reside (
The last contention made by the People is that this state has concurrent jurisdiction with the United States. Since the statutes in question provide that the United States has exclusive jurisdiction in such a situation, the contention is obviously without merit.
Inasmuch as the superior court was without jurisdiction to try defendant for the crime with which he was charged, the judgment of conviction is a nullity and should therefore be reversed with directions to the trial court to dismiss the information against the defendant.
Appellant‘s petition for a rehearing was denied September 16, 1954. Carter, J., was of the opinion that the petition should be granted.