Tooisgah v. United States, 2652.

Citation137 F.2d 713
Decision Date05 August 1943
Docket NumberNo. 2652.,2652.
PartiesTOOISGAH v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Lee Williams, of Oklahoma City, Okl. (Herbert K. Hyde, of Oklahoma City, Okl., and Roy St. Lewis, of Washington, D. C., on the brief), for appellant.

Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl. (John Brett, Asst. U. S. Atty., of Oklahoma City, Okl., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge, delivered the opinion of the court.

The appellant, Phillip Tooisgah, a full-blood Apache Indian, was indicted in the Western District of Oklahoma; was tried, convicted, and sentenced to life imprisonment for the murder of Lucy Tahdooahnippah, a full-blood Comanche Indian. Federal jurisdiction is sustained under R.S. Sec. 2145, 25 U.S.C.A. § 217, and Sec. 328 Criminal Code, 35 Stat. 1151, 18 U.S.C.A. § 548, by a stipulation on this record to the effect that the homicide occurred in Caddo County, Oklahoma, on the restricted allotment of Ellen Mulkehay, a full-blood Apache Indian, title to which was held in trust by the United States. See ch. 813, Sec. 6, 31 Stat. 672. The allotment was carved from lands formerly occupied by the Apache Tribe of Indians under the Medicine Lodge Treaty of 1867, 15 Stat. 581, 589, see Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299, and was Indian Country within the purview of R.S. 2145, supra. See Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L. Ed. 1030; United States v. Pelican, 232 U. S. 442, 34 S.Ct. 396, 58 L.Ed. 676; United States v. Ramsey, 271 U.S. 467, 46 S.Ct. 559, 70 L.Ed. 1039; Ex parte Nowabbi, 60 Okl.Cr. 111, 61 P.2d 1139; Ex parte Pero, 7 Cir., 99 F.2d 28.

Conviction is based partially upon the written confession of appellant, and the sole question presented by this appeal is whether the trial court erred in admitting the confession in evidence, without first determining its voluntary character out of the presence of the jury. It is not contended that the confession was involuntarily obtained, or ultimately inadmissible in evidence, but it is contended that since the question of its voluntariness was challenged when offered, it was the inescapable duty of the court to conduct a preliminary inquiry out of the presence of the jury, for the purpose of determining whether the confession was obtained by the use of methods, or under circumstances which would render it inadmissible. This question is best answered by a recurrence to the circumstances under which the confession was obtained and admitted in evidence, as reflected by the record brought here.

Before the confession was offered in evidence, Hoyt Shelby, a special officer for the Indian Service, testified without objection that on June 3, 1942, he and a deputy sheriff went to the Kiowa Indian Hospital at Lawton, Oklahoma, where the appellant was confined. After having secured the permission of his attending physician, he and the deputy sheriff interviewed appellant concerning the death of Lucy Tahdooahnippah. Shelby testified he advised appellant that he was an officer making an investigation of the case; that he was not defending him, but was getting evidence for the prosecution; that the appellant had a right not to make any statements whatsoever, and he also had a right to counsel. But, according to Shelby's testimony, appellant stated, "There ain't anybody to blame but me, and I want to tell it just like it is." Appellant then related that on June 2, 1942, at about eight o'clock in the morning, he killed Lucy Tahdooahnippah, and left her lying over close to the big spring west of the house; that after he shot her, he shot himself, walked about fifteen steps south, passed out, and did not remember anything until about five o'clock in the evening, after which he crawled to the house, hid the gun under the mattress or springs, and spent the night alone. When asked if he realized he was committing a serious crime, he said that he did, but that he "aimed to kill" himself also, and when asked why he did not kill himself, he replied "it hurt too much." Shelby further testified, without objection, that on the following day, June 4th, he returned to the Hospital, at which time the appellant voluntarily dictated a written statement to Mrs. Hardick, a clerk at the Hospital. The statement was dictated in the presence of Shelby, Mrs. Hardick, Mrs. Elliott, a technician, and the attending physician who was present part of the time.

When Shelby was asked to state if the appellant signed the statement, counsel for appellant objected, suggesting "that the proper procedure would be to excuse the jury from the courtroom until Your Honor determines whether or not the statement was voluntarily made." The court observed that the statement had not been offered in evidence, but if counsel would make an offer, he would "take it up." Counsel for the government continued to interrogate Shelby concerning the circumstances under which the statement was made, and Shelby testified that he told the appellant he did not have to make any statement, that anything he said would be used against him, and appellant stated, "I want to make the statement, I want to tell it just like it is — there is nobody to blame but myself and I want to tell it." At this point, the signature of the appellant was identified, and the statement was offered in evidence as his confession, whereupon counsel for appellant objected; asked that the jury be excused, and that the court determine whether the confession was voluntarily made, stating, "It is true the testimony has already developed the contents of the statement, but I think under the law Your Honor should determine whether or not the statement was made voluntarily and under what circumstances. For instance, whether he was under the influence of narcotics and one thing and another, and which Your Honor should determine in the absence of the jury." The court reserved his ruling "until we hear other testimony."

Mrs. Hardick was next called as a witness. She testified that she took the statement of appellant on the typewriter as he related it, and that Shelby advised him of his rights before he gave the statement. At this point, counsel for appellant again objected to the testimony, requesting the court to "pass upon the admissibility of the statement which is concurrent with this testimony, otherwise the statement goes in, but the statement amounts to a nullity." Whereupon the court stated, "Let the statement be admitted, the evidence is sufficient to...

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9 cases
  • Tooisgah v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 5, 1950
    ...patent deed never having been issued to her by the Secretary of the Interior. When the case was here on appeal, Tooisgah v. United States, 10 Cir., 137 F.2d 713, jurisdiction of the court over the offense was not challenged. We noticed and sustained it, however, under R. S. § 2145, 25 U.S.C......
  • United States v. Feinberg
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 31, 1967
    ...by permitting the statement to be read to the jury prior to any exploration of the surrounding circumstances. See Tooisgah v. United States, 137 F.2d 713, 716 (10 Cir. 1943). If appellant's subsequent testimony had indicated a credible possibility that his written statement, footnote 7 supr......
  • Wood v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 27, 1963
    ...to the witnesses testifying on redirect as to the details including the admissions. In this respect the case of Tooisgah v. United States, 137 F.2d 713 (10th Cir.), is pertinent for there the substance and circumstances of a confession were already in evidence before objection was made. In ......
  • Brice v. State
    • United States
    • Maryland Court of Appeals
    • January 21, 1972
    ...the jury was in attendance, relying on Smith v. State, 189 Md. 596, 606, 56 A.2d 818, 822 (1948) which cites Tooisgah v. United States, 137 F.2d 713, 716 (10th Cir. 1943) with approval. Judge Grason, for the Court, 'We are of opinion that the best practice is to hear evidence on the prelimi......
  • Request a trial to view additional results

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