Hale v. United States

• Citation: 25 F.2d 430
• Decision Date: 27 March 1928
• Docket Number: No. 7810.,7810.
• Parties: HALE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

25 F.2d 430 (1928)

HALE v. UNITED STATES.

No. 7810.

Circuit Court of Appeals, Eighth Circuit.

March 27, 1928.

John I. Williamson, of Kansas City, Mo., and J. I. Howard, of Pawhuska, Okl. (William S. Hamilton and Edward C. Gross, both of Pawhuska, Okl., on the brief), for plaintiff in error.

Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl. (O. R. Luhring, Asst. Atty. Gen., and Oliver E. Pagan, Edwin Brown, T. J. Leahy, Horace L. Dyer, and Paul B. Bailey, Sp. Asst. Attys. Gen., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and KENNEDY, District Judge.

VAN VALKENBURGH, Circuit Judge.

William K. Hale, plaintiff in error, was indicted, tried, and convicted for aiding and abetting one John Ramsey in the murder of Henry Roan, a full-blood Osage Indian. The murder is alleged to have been committed February 6, 1923, in Osage county, Okl., upon a restricted allotment of one Rose Little Star, a member of the Osage Tribe of Indians. The federal jurisdiction is based upon this locus in quo. Ramsey was indicted and convicted jointly with Hale. He has prosecuted a separate writ of error. The direct testimony connecting Ramsey and Hale with the murder was given by one Ernest Burkhart, a nephew of Hale, now serving a life sentence for complicity in the murder of one W. E. Smith and members of his family. The motive assigned for the murder was, in effect, that plaintiff in error had procured the taking out of a policy of insurance in the sum of $25,000 upon the life of Roan; his claimed interest being an indebtedness of Roan to him for that amount, as evidenced by a promissory note dated in January, 1921, but claimed by the government to have been made in June of that year, about the time the policy was issued. There was testimony to the effect that Roan had theretofore attempted suicide, and that, when the policy was written, plaintiff in error had displayed interest as to the date on which the policy would become indefeasible on the ground of suicide, fraud in representations made, or for any other cause. He was advised that after one year the policy would be incontestable. He paid two premiums on the policy, whereby it was kept in force for a period of more than one year prior to Roan's death.

For the purposes of this opinion a further recital of facts connected with the murder is deemed unnecessary. Matters governing our decision will appear in connection with a discussion of the errors assigned.

At the threshold, the jurisdiction of the District Court is challenged. At the time the crime was committed, Osage county formed a part of the Western district of Oklahoma. The state was then composed of two judicial districts, the Eastern and Western. An Act of Congress, approved February 16, 1925 (Comp. St. §§ 1088-1088e), created three districts in the state, designated as the Eastern, Western, and Northern. The duly created Northern district comprises ten counties, which were formerly a part of the old Eastern district, and two counties, Osage being one, which were formerly a part of the old Western district. With this exception, the new Western district remains as before. The case was tried October 20, 1926, at Oklahoma City, in the Western district. A previous trial at Guthrie, in the same district, in July of the same year, had resulted in a mistrial. At the first trial, as at the second, the defendants jointly moved to transfer said cause for trial to Osage county, Okl., then in the new Northern district of that state. This motion was denied. In order that the effect of this ruling may be better understood, the motion is set out in full:

"Motion of John Ramsey and W. K. Hale to Transfer the Trial of Said Cause as Provided in Section 40 of the Judicial Code (28 USCA § 101).

"Comes now the defendants, John Ramsey and W. K. Hale, and respectfully represent and show to the court that they stand charged by the indictment in this case with the crime of murder which is a capital offense under the laws of the United States, and that the indictment charges that the offense was committed in Osage county, Okl., on or about the 16th day of February, 1923. Said defendants therefore respectfully pray the court that the trial of said cause be had in Osage county, Okl., and, as grounds therefor, say:

"First. That section 40 of the Judicial Code provides that the trial of said cause shall be held in Osage county, Okl., the county where said offense is alleged to have been committed, where it could be done without great inconvenience; that not only would no inconvenience result from the trial of said cause in Osage county, but that a trial in Osage county will result in great convenience to all parties concerned in the prosecution and defense of said cause.

"Said defendants respectfully represent and show to the court that the city of Pawhuska, the county seat of Osage county, has been designated by the Congress of the United States as a place for holding United States court, in the Northern district of Oklahoma, and that pursuant thereto that one term of the United States court for the Northern district of Oklahoma has been held in the city of Pawhuska, and that such court terms will continue to be held in the city of Pawhuska, pursuant to said act of Congress; that Osage county has a large, convenient, and commodious county courthouse, and a large and commodious district courtroom therein, and that the same has been tendered to and used by the United States court for the Northern district of Oklahoma for the holding of court therein, and that the same is at all times available to the United States court for the holding of its sessions in the city of Pawhuska.

"These defendants further say that the city of Pawhuska is provided with ample hotel facilities and conveniences for the use of the court, attorneys, witnesses, and jurors in attendance at said court.

"Defendants further say that the alleged offense in this case was committed near the town of Fairfax, in Osage county, Okl., at a distance of approximately 30 miles from Pawhuska, the county seat, and that it is approximately 100 miles to the city of Guthrie, the nearest court town in the Western district of Oklahoma. That the principal witnesses, both for the United States and the defendants, live in and around the town of Fairfax, and great convenience would result to said witnesses, both for the government and for the defendants, if said cause was tried in Osage county, and that great inconvenience would result if said trial is held elsewhere in this district.

"The defendant John Ramsey alleges and says that he is a poor person, and that his means are very limited, and that a trial of this case at Pawhuska will convenience him in the procurement of the attendance of witnesses to testify in his behalf, but that he is unable to pay the expenses of said witnesses to appear in his behalf at Guthrie or Enid or other court towns in the Western district of Oklahoma, or to pay the expenses of the marshal in subpœnaing said witnesses for said purpose.

"Defendants further respectfully show to the court that, under section 59 of the Judicial Code (28 USCA § 121), the court, upon application of the defendant, is authorized and empowered to transfer the trial of said cause to Osage county, notwithstanding the fact that the Northern district of Oklahoma has been created since the alleged commission of the offense of which the defendants stand charged.

"Wherefore defendants pray that the court make and enter its order transferring the trial of this cause to Osage county, Okl., as herein prayed."

Section 40 of the Judicial Code, upon which this motion is predicated, provides as follows:

"The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience."

The Act of Congress of February 16, 1925 (Comp. St. § 1088d), by which the redistricting was effected, contains the following provision respecting the jurisdiction and authority of the courts of the several districts as affecting the prosecution of crimes and offenses committed therein prior to the establishment of the Northern district:

"Jurisdiction and authority of the courts and officers of the Western district of Oklahoma, and of the courts and officers of the Eastern district of Oklahoma as heretofore divided between them by the order of the senior judge of the Circuit Court of Appeals for the Eighth Circuit of the United States over the territory embraced within said Northern district of Oklahoma shall continue as heretofore until the organization of the District Court of said Northern District, and thereupon shall cease and determine, save and except in so far as the authority of the junior judge of said Eastern district is continued in him as judge of said Northern district, and save and except as to the authority expressly conferred by law on said courts, judges or officers, or any of them, to commence and proceed with the prosecution of crimes and offenses committed therein prior to the establishment of the said Northern district, and save and except as to any other authority expressly reserved to them or any of them under any law applicable in the case of the creation or change of the divisions or districts of District Courts of the United States."

The authority expressly reserved "under any law applicable in the case of creation or change of the divisions or districts of District Courts of the United States" is conceded to be section 59 of the Judicial Code, which, in so far as applicable, provides as follows:

"Whenever any new district or division has been or shall be established, or any county or territory has been or shall be transferred from one district or division to another district or division, prosecutions for crimes and offenses committed within such district, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if...