27 F. Cas. 950 | U.S. Circuit Court for the District of Arkansas | 1847
charged the jury that it would not be necessary to give any particular direction as to the law of murder, because there was no contest on that point at all, nor had any justification been attempted for the killing of the deceased. If the jury believed the witnesses, who had not indeed been impeached in any way, it was an atrocious and wilful murder. The prisoner did not rest his defence on his innocence, but on the want of jurisdiction in this court to punish him at all. He is charged in the indictment to be a Cherokee Indian, and the deceased to have been a white boy and not an Indian, thus presenting a case, as far as the indictment is concerned, within the jurisdiction of the court. The witnesses for the government, if believed, establish the averment in the indictment, that the defendant is a Cherokee Indian, and also state that the deceased was called and generally reputed to be a white boy, not of any Indian tribe. To rebut this the prisoner introduced witnesses, who have stated that they knew the father of the boy, that he was a white man, lived in the Indian country, and that they had frequently heard him declare that the mother of the deceased was an Indian woman. The declarations of a father as to the maternity of a child are admissible and competent evidence (1 Phil. Ev. 238, 239: 2 Phil. Ev. [Cowen & Hill’s notes] notes 463-466, 468); but the circumstances under which they are made, and the weight to be attached to them are matters for the jury to determine.
There has been considerable discussion as to who ought to be considered an Indian within the purview of the proviso of the 25th section of the intercourse law of 1834, which declares, that the laws of the United States, for the punishment of crimes in the Indian country, shall not extend to crimes committed by one Indian against the person or property of another Indian. Gord. Dig. 430. That act does not define an Indian, but uses a general term without embracing or excluding any particular class of persons. On consultation with my brother judge we concur in laying down this rule as the safest: that the child must follow the condition of the mother. If the mother is an Indian woman her offspring must be considered Indians within the meaning of the proviso alluded to, whether the father be a white man or Indian. And so, on the other hand, the child of a white woman by an Indian father, would, for all the purposes of that act, be deemed of the white race; the condition of the mother, and not the quantum of Indian blood in the veins, determining the condition of the offspring. This is substantially following the common law rule, which was borrowed from the civil law. ■ Just. Inst, bk. 1, tit. 4, p. 13. The rule of the civil law was, that one born of a free mother was free, although the father was a slave; and sc on the other hand, if the mother was a slave the offspring partook of her condition. Ruth. Inst. 247; Shelton v. Barbour, 2 Wash. (Va.) 67. There can be no doubt that the rule partus sequitur ventrem generally obtains in this country. Hudgins v. Wrights,
If the jury believe from the evidence that the mother of the boy Billy was an Indian woman, we are of opinion on the rule just laid down, that her offspring was also an Indian within the meaning of the exception alluded to, and consequently that the court is destitute of authority to punish the prisoner, however guilty he may be, and that the jury ought to return a verdict of not guilty.
Questions of jurisdiction ordinarily belong to and are decided exclusively by the court as pure matters of law; but here it is necessary that certain facts should be passed upon by the jury before that question can properly arise. Where the jurisdiction, however, depends upon the existence of facts, the jury may, under the direction of the court as to matter of law, affirm through the medium of a general verdict that there is or is not jurisdiction.
Verdict not guilty, and prisoner discharged.
