19 P. 558 (Mont. 1888), Burgess v. Territory

Citation:19 P. 558, 8 Mont. 57
Opinion Judge:DE WOLFE, J.
Attorney:H. G. McIntire and Wade, Toole & Wallace, for appellant. W. E. Cullen, Atty. Gen., for the Territory.
Judge Panel:MCCONNELL, C.J., and LIDDELL, J., concur.
Case Date:September 15, 1888
Court:Supreme Court of Montana

Page 558

19 P. 558 (Mont. 1888)

8 Mont. 57




Supreme Court of Montana

September 15, 1888

Appeal from district court, Fergus county.

The defendant, William H. Burgess, was indicted for the murder of one Dennis O'Brien. He was convicted of murder in the second degree, and sentenced to 13 years' imprisonment, from which judgment and sentence he appeals.

The court refused to instruct that, if at the time deceased and his companions went to the accused he was in the possession of the F. mine, the deceased and the others had no right to approach the accused in a threatening manner with weapons of a deadly character exhibited and in a condition to be used; and if the jury believed, or had no reasonable doubt but that the accused was so approached by the deceased and his companions, and fired from a reasonable apprehension that they were about to take his life, then they must acquit the defendant. The court also refused to instruct that if on or before the shooting deceased made threats against the life of defendant, which threats were communicated to him on or before the shooting, and that on the day of the shooting defendant saw deceased and his companions coming towards him, making hostile demonstrations with deadly weapons, and defendant shot and killed deceased under the apprehension that deceased and his companions sought his life, or intended to inflict a great bodily harm, the killing was justifiable. Held, that the error in refusing this instruction was cured by instructions that where one without fault himself is attacked, having reasonable grounds for apprehending a design to take away his life, or do great bodily harm, and reasonably believing that the danger is imminent, he may kill the assailant, if necessary, to avoid the apparent danger, and the killing will be justifiable, though there was, in fact, neither design to do him serious injury nor danger that it would be done; that if a person believes and has reasonable ground to believe that another has sought him out for the purpose of killing him or doing him great bodily harm, and is prepared therefor with deadly weapons and the latter makes demonstrations manifesting an intention to commence an attack, then the person so threatened is not required to retreat, but may defend himself, and in so doing, if it is necessary, kill his antagonist.

Page 560

H. G. McIntire and Wade, Toole & Wallace, for appellant.

W. E. Cullen, Atty. Gen., for the Territory.


The defendant was tried and convicted of murder in the second degree for killing Dennis O'Brlen on the 10th day of September, A. D. 1887, and sentenced to imprisonment in the territorial prison for 13 years. The defendant moved for a new trial on several grounds: First, misconduct of the jury, tending to prevent a fair and due consideration of the case, to-wit: The drinking by the jury of intoxicating liquors after being charged by the court, and while considering their verdict: second, the court misdirected the jury in material matters of law, in this: in giving the instructions it did give, and in refusing the instructions asked by the defendant; third, the court excluded legal evidence on the trial of the cause; fourth, the verdict is contrary both to the law and the evidence; and, fifth, the defendant did not have, and was not tried by, a competent jury, as required by law, in this: that two of the jurors in said cause had formed and expressed an opinion as to the guilt of the defendant prior to his examination on the voir dire, and on said examination stated that they had not formed or expressed such opinion, and were therefore accepted as jurors. The motion for a new trial was based upon a bill of exceptions, affidavits filed in said cause, and on the minutes of the court; all of which are contained in the record. The motion for new trial was overruled, upon which the defendant, by his counsel, filed a motion in arrest of judgment, on the ground: First. That the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of its not being within the jurisdiction of said court, said offense having been committed within the exterior boundaries of the Fort Maginnis military reservation; the same being a reservation set apart for the use of and occupied by the military forces of the United States, and not within the jurisdiction of the said county of Fergus. Second. The court had no jurisdiction of said offense, the same having been committed within the Fort Maginnis military reservation, and not within the jurisdiction of the county of Fergus. The motion in arrest of judgment was overruled, and judgment pronounced in accordance with the verdict of the jury. To reverse this judgment this appeal is prosecuted.

We will consider the alleged errors of the court in the inverse order in which they appear in the record and in the brief of the appellant; first examining the question of the jurisdiction of the court, raised by the motion in arrest of judgment. It is conceded in argument, and in the briefs on file, that the offense charged in the indictment was committed on the Fort Maginnis military reservation, although the indictment itself does not allege this, but charges the crime to have been committed in the county of Fergus. Section 5339, Rev. St. U.S., prescribes "that every person who commits murder within any fort, arsenal, dock-yard, magazine, or any other place under the exclusive jurisdiction of the United States, shall suffer death." In giving a construction of this provision of law, we should not lose sight of the fact that in one and the fullest sense of the term the United States possesses sovereignty over the territories of the United States, so long as they exist under territorial governments; that their powers of government, and the jurisdiction of the courts established in the territories, are only such as are authorized under the act creating the government of the territory. From this it is (with much reason) urged that the courts of a territory owe their jurisdiction and existence to the government which created them; and, although not held to be courts contemplated by, or established under, the provisions of the constitution defining the judicial powers of the United States, they are nevertheless courts established by an act of congress, under and by virtue of the supreme power of the government over the territories of the United States. In this view, the courts of the territory may, in a strict sense, be held to exercise their powers under the authority conferred by the act of congress, and, when jurisdiction is conferred

Page 561

upon them, whether by congress or the local legislature, they continue to exist and exercise whatever jurisdiction they possess under the sovereign power which created them; and, when exercising the jurisdiction authorized by law, it is not to the exclusion of the United States, but rather in the maintenance and assertion of its jurisdiction. Hence it is claimed by the respondent that the district court of Fergus county, in trying the defendant, in no way transcended its jurisdiction. The appellant, on the contrary, contends that, as the offense charged in the indictment was committed on a military reservation, it could be tried only in a district court when sitting for the trial of causes arising under the constitution and laws of the United States; the claim being that the United States, by virtue of section 5339 of the Revised Statutes above referred to, had the exclusive jurisdiction of the offense charged. Counsel for appellant have cited a number of cases in their brief, and these we will consider before examining the cases appearing to hold the contrary doctrine. The first case is that of Railroad Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995. It was an action by the railroad company to recover back certain taxes paid to the state of Kansas, on the ground that property situated on a military reservation was not subject to state taxation, the United States having exclusive jurisdiction. The court held the law of the state valid, and not in conflict with the jurisdiction of the United States; the state, at the time of its admission into the Union, and by the terms of the cession of the military reservation of Fort Leavenworth, expressly reserving the "right to tax railroad, bridge, and other corporations, their franchise and property on said reservation." This certainly is not an authority in support of the proposition contended for by the appellant. The next case is that of Franklin v. U. S., 1 Colo. 42. In this case the defendant was indicted, tried, and convicted of the crime of murder, in the district court of Gilpin county, Colo. A plea to the jurisdiction of the court was interposed on the ground that the territory of Colorado was a district of country under the exclusive jurisdiction of the United States, and for this reason the offense was triable only in a court of the United States. The plea to the jurisdiction was sustained in the district court, but reversed on appeal to the supreme court. The case, like the former one, is not in point. The next case is that of Scott v. U. S., 1 Wyo. 40. The defendant was tried and convicted of murder committed on the Fort Steele military reservation. The trial was in a district court sitting as a circuit court of the United States for the trial of causes arising under the constitution and laws of the United States. After conviction, a motion for a new trial was made on the ground that the court which tried the cause had not jurisdiction to try it, and because the United States had not exclusive jurisdiction of the military reservations within the territory of Wyoming. The court overruled the motion for new trial, and affirmed the judgment of the trial court. The principles of law involved in that...

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