51 F. 20 | U.S. Circuit Court for the District of Montana | 1892
The defendant was charged in the indictment in this case with an assault with the intent to commit murder. He was tried and by the jury found guilty of this offense. Counsel for defendant now come into this court and move the court that the judgment herein be arrested. Among the grounds for this motion are that the indictment alleges no offense known to the laws of the United States; that for the crime alleged in the indictment and proven at the trial there is no punishment provided by the United States laws. Upon an examination of the statutes of the United States, I find no such crime named as an assault with the intent to commit murder. There is a punishment provided in the 5342d section of Rev. St. U. S. for the crime of an attempt to commit murder or manslaughter by any means not constituting an assault with a dangerous weapon. I suppose the meaning of this latter clause, not constituting an assault with a dangerous weapon, means nothing more than that the attempt to commit murder must amount to something more or different from that of an assault with a dangerous weapon, because such an assault is made a crime of itself. In the crime of an attempt to commit murder, or an assault with the intent to commit
The question arises as to whether or not the crime of an assault-does not appear sufficiently in the indictment. It is charged that the defendant made an assault upoxnAsliley. There is, however, no punishment pro
“That immediately upon and after the date of the passage of this act all Indians, committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and snail be subject to the same penalties, as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases. And all such Indians committing any of the above crimes against the person or property of another Indian or other person 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.”
Montana has ceased to be a Territory, and hence the first part of the above section does not apply. As I have shown, the punishment for the crime of an assault with intent to commit murder or manslaughter, nor the crime of assault, except in enumerated cases, is not established by a United Statutes statute, although committed within a place within the exclusive jurisdiction of the United States. An assault with intent to kill is not the same offense as an assault with the intent to commit murder. There may not exist in the former the element of malice aforethought; there may be an unlawful and intentional killing, which does not amount to murder. State v. Hill, 4 Dev. & B. 491, Hor. & T. Cas. 199; Com. v. Drum, Id. 190. If an assault with the intent to kill was the same crime as an assault with the intent to commit murder, no punishment is provided for either.
The second of the statutes before alluded to is as follows:
*23 . “If any offense be committed in any placo which lias been or may hereafter be ceded to and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for, by any law of the United States, such offense shall be liable to and receive the same punishment as the laws of the state in which such place is situated, now in force, provide for the like offense when committed within the jurisdiction of such state; and no subsequent repeal of any such state law shall effect, any prosecution for such offense in any court of the United States.” ¡section 5391, Rev. St. U. S.
This statute has been construed by the supreme court in the case of U. S. v. Paid, 6 Pet. 141, and held to apply to state statutes punishing crimes which existed at the time of the passage of this statute. This decision has at no time been reversed or doubted by that court, and was a contemporaneous judicial construction of the same, and should be ■adhered to. Considering the language of the statute, (and I do not see how any other conclusion could be reached,) congress might be willing to adopt the laws of a stale which existed at the time of the passage of a statute by it, but would hardly be willing beforehand to adopt all the criminal statutes a state might in future enact. A statute to Ibis effect might be classed as delegating legislative authority, which is not proper. This statute was passed in 1825. But the construction contended for, namely, that it applied to any laws which might exist in any state, at any time when a place might be ceded by it to the United States, brings us to no different conclusion. Tn the case of U. S. v. Kagama, 118 U. S. 375, 6 Sup. Ct. Rep. 1109, the supreme court, in speaking of Indian tribes, said:
“They were and always have been regarded as having a semi-independent position when they preserved tlieir tribal relations, not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal social relations, and thus far not brought under the laws of the Union or of the state within whose limits they resided.”
This view was largely supported by the cases of Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515. .The evidence in this case'showed that the defendant and the witness Ashley, upon whom the offense was committed, were both members of the Flathead tribe of Indians, under the charge of an Indian agent. It is safe, therefore, to assert that Montana could pass no criminal statute affecting the members of this Indian tribe in their relations with each other, and ■ that it has not done so. In the case of U. S. v. Kagama, supra, the supreme court said of Indians occupying such relations as these Indians: “ They owe no allegiance to the state, and receive from them no protection.” I do not say that when an Indian commits a crime against a white man within the state, and off of a reservation, he cannot be punished by the laws of the state where the offense was committed, but the state cannot regulate in any manner the social relations of the members of an organized Indian tribe among themselves. There was then no law of Montana touching this crime at the time the Flathead Indian reservation was ceded, if ever, to the United States. I hardly think that the