State v. Buckaroo Jack
30 Nev. 325
Nev.
1908
Check Treatment

By the Court,

Noroross, J.:

Appellant was indicted in the Second Judicial District Court in and for Humboldt County for the crime of murder, the indictment alleging that on the 10th day of April, 1907, he murdered a human being, commonly known by the name of "Lotta” whose real name was to the grand jury unknown. Appellant interposed a plea of not guilty, was tried for the offense, and on the 17th day of October, 1907, the jury returned a verdict of guilty of murder in the first degree, and fixed the penalty at death. Judgment in accordance with the verdict was thereupon duly entered.

Motions were made to dismiss the proceeding, and in arrest of judgment, upon the ground that the court had no jurisdiction of the case, because the proof showed that both the defendant and the person killed were Indians, and that the indictment did not allege, nor the proof show, that the offense was not committed on an Indian reservation. The question of jurisdiction is the only one presented upon the record. Prior to 1885, the courts of this state were without jurisdiction to punish for an offense committed by one Indian against another Indian, whether the offense was. committed on or *333off an Indian reservation. (State v. McKenney, 18 Nev. 182.)

The legislature of 1885 passed an act entitled "An act extending the criminal laws of this state to and over Indians therein.” The act contains but one section, and reads as follows: "All the laws of this state concerning crimes and punishments, or applicable thereto, and all the laws of this state concerning procedure or applicable thereto, are hereby extended to and over all Indians in this state, whether such Indians be on or off an Indian reservation, and all of said - laws are hereby declared to be applicable to all crimes committed by Indians within this state, whether committed on or off an Indian reservation, save and except an offense committed upon an Indian reservation by one Indian against the person or property of another Indihn.” (Comp. Laws, 4655.) By the act of Congress, March 3, 1885 (23 Stats. 385, c. 341; sec. 9), it is provided that all Indians committing, against the person of another Indian, murder and certain other designated crimes, "within the boundaries of any state of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.” The provisions of this federal statute were sustained as constitutional in the case of U. S. v. Kagama, et at., 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228.

It is claimed by counsel for appellant that under the provisions of the statute of this state, where the offense is committed by one Indian against another Indian, it is essential that the indictment charge, and the proof upon the part of the state show, that' the offense was committed off an Indian reservation. In this contention we are unable to agree with appellant’s counsel. The jurisdiction of the state courts over Indians within its borders is made general, subject only to the exception where the offense is committed by one Indian against another upon an Indian reservation. The jurisdiction of the federal courts to try certain and specified offenses, including murder, committed by Indians is not general, but is limited only to cases where the offense was committed upon *334an Indian reservation, which special and limited jurisdiction is within the exception of the state statute. Where the state jurisdiction is general, and that of the federal government is special and limited, it is not neeessary, in a prosecution in the state court, to negative the jurisdiction of the United States, nor is it incumbent upon the state to prove further than that the offense was committed within the county. The reverse would doubtless be the ease in the federal courts. (U. S. v. Ward, 42 Fed. 320.)

The principle here involved is analogous to that considered in the case of State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488, wherein this court, by Hawley, J., said: "Appellant’s counsel argue that this indictment does not state an offense, because it does not show' that the defendant is not within the exceptions specified in the statute. They claim the rule to be that, if there is an exception in the enacting clause, the prosecution must negative the exception, and state in the indictment that the defendant is not within it. The principle decided in State v. Robey, 8 Nev. 321, is adverse to this rule. There are cases cited in Wharton’s Crim. Law, secs. 378, 379, where the language employed would seem, at first blush, to sustain the position contended for by appellant. But from a careful examination of all the authorities upon this subject, we are of the opinion that it is only necessary, in an indictment for a statutory offense, to negative an exception to the statute, when that exception is such as to render the negative of it an essential part of the definition or description of the offense charged. * * * The question is one not only of pleading, but of evidence; and, where the exception need not be negatived, it need not be proven by the prosecution;’ '

A number of courts have had occasion to consider the identical question here presented. In the case of People v. Collins, 105 Cal. 504, 39 Pac. 16, the court said: "The jurisdiction of the state being general, and that of the United States exceptional, it is not necessary to negative, in an indictment or information in the state courts, the jurisdiction of the federal courts. It is like an exception in an act creating or defining a public offense, in which case it is held that *335if tbe exception is not necessary to tbe description of tbe offense, it need not be alleged or negatived, but it is a matter of defense simply.”

In tbe case of State v. Tully, 31 Mont. 365, 78 Pac. 760, 3 A. & E. Ann. Cas. 824, tbe Collins case, supra, was cited and followed, also the case of State v. Spotted Hawk, 22 Mont. 43, 55 Pac. 1028, wherein that court said: "Counsel for defendant insist that the information does not state facts sufficient to show that tbe court bad jurisdiction. After stating the facts sufficient to charge tbe defendant with murder, it contains tbe following allegations: ' That all of tbe defendants are Cheyenne Indians, and that said Hoover was a white man, and was, at tbe time and place of tbe murder, within tbe County of Custer, and not within tbe limits of any Indian reservation.’ Defendant claims that this is a necessary .allegation; but, inasmuch as there is within Custer County tbe Fort Keogh Military Reservation, tbe information should also show that the crime was not committed there. The information is in conformity with the statute. The district court has general jurisdiction of all felonies committed within the limits of the county where it sits. The allegation quoted supra is surplusage. If the defendant should be charged with crime committed out of the court’s jurisdiction, this is a matter to be taken advantage of at the trial.”

In State v. Williams, 13 Wash. 335, 43 Pac. 15, a case directly in point, that court said: "It is further insisted that the demurrer should have been sustained, because it appears from the information that the accused is an Indian, and also that the person alleged to have been killed was an Indian; that the Swinomish Indian Reservation lies within the limits of the County of Skagit, and that the court will take judicial notice of the existence and boundaries of said reservation. We do not think the objection is well taken. 'Prima facie, all persons within the state are subject to its criminal laws, and within the jurisdiction of its courts. If an exception exists, it must be shown. (State v. Ta-cha-na-tah, 64 N. C. 614.)’ * * * Our investigations of the authorities lead us to conclude * * * that an information, filed in the superior court of a county containing within its limits the *336part or a whole of an Indian reservation, against a person who is described in the information as an Indian, need not, in order to confer jurisdiction, aver either that such person does not sustain tribal relations, or that such offense was not committed within the limits of such reservation.” See, also, Pablo v. People, 23 Colo. 134, 46 Pac. 636, 37 L. R. A. 636; State v. Ta-cha-na-tah, 64 N. C. 614; 22 Cyc. 148.

Counsel for appellant contends that there is evidence in the record which " tends to show that the alleged offense was committed on an Indian reservation at Camp McDermitt, and there is no evidence to the contrary” The evidence upon the question of the location of the place where the homicide was committed is to the following effect: That it occurred at Ox Sam’s house, about a quarter of a mile from the Indian day school at McDermitt, in Humboldt County. There is nothing in the testimony showing that the Indian school is on an Indian reservation, much less any showing that Ox Sam’s house was within the lines of such reservation. The burden of showing these facts, if they existed, was upon the defendant, unless it was a case such that the court would take judicial notice of the existence of a lawfully established and defined Indian reservation.

No error appearing in the record, the judgment is affirmed, and the district court is directed to fix a time and make all necessary orders for having its sentence carried into effect by the warden of the state prison.