Walks on Top v. United States, 21148.
| Decision Date | 07 February 1967 |
| Docket Number | No. 21148.,21148. |
| Parties | George Richard WALKS ON TOP, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James W. Ingalls, Coeur d'Alene, Idaho, for appellant.
Sylvan Jeppesen, U. S. Atty., Boise, Idaho, for appellee.
Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.
Walks On Top and Donald George are Indians with separate homes on the Coeur d'Alene Indian Reservation in Idaho.
Walks On Top has been convicted on a charge that "by means and use of a dangerous weapon a revolver, he did forcibly assault, resist, oppose, impede and interfere with Donald George, Chief Policeman, Bureau of Indian Affairs, an officer and employee of the Indian field service of the United States, while the said Donald George was engaged in the performance of his official duties."
There is little doubt that Walks On Top shot Officer George in the back with a revolver, leaving him partially disabled for life. But we deal here with whether a federal crime was committed, with whether evidence was improperly received concerning events of the 12 to 15 hours preceding the shooting of George, and with whether the jury was properly instructed. Appellant's appointed counsel has represented the defendant-appellant very skillfully on trial and on appeal, but we affirm.
We begin our narration of the events in the middle of the story.
George was an Indian officer whose employer was the United States through the Bureau of Indian Affairs. He had been joined on the reservation by Sheriff Baltz of Benewah County, Idaho, at a point on a road therein. Each officer was already "cross-deputized" into the other's service.
The two officers had received word that a woman, Arlie Jean Lowley Brown, a Coeur d'Alene Indian, and one or more men had been in some mischief earlier in the day in the City of Spokane, Washington, and in the County of Spokane south of the city.
During a search around the village of Tensed, Idaho, (on the reservation) George and Sheriff Baltz suddenly came face to face with Walks On Top and Arlie Brown. Walks On Top with drawn pistol ordered, "Drop your gun, copper," or something like it. The sheriff and George outbluffed him. He dropped his gun and he and Mrs. Brown were handcuffed and placed in the sheriff's station wagon.
While the officers were still in Tensed, the sheriff picked up a third person, one Kessler, a rather intoxicated person. Then out to a different area of the reservation the two officers (with the prisoners in custody) drove. The officers were in search of two men believed to have been part of the Brown-Walks On Top party earlier in the day.
Unfortunately the officers had overlooked on Walks On Top a gun previously taken from Spokane County officers. At a point out in the country, the sheriff's car was brought to a stop. Officer George remained behind to guard the three prisoners and Sheriff Baltz went on foot looking for the two missing men.
George dismounted from the sheriff's car, leaving the prisoners in it. For an instant, he turned his back and Walks On Top shot him in the back. Though crippled, George returned the fire from his shotgun. There followed considerable exchange of fire. George, badly wounded, was hit at least once more and Walks On Top also was seriously hurt. Both ended up in the same hospital in Spokane.
Appellant bears down heavily on the alleged prejudice arising from witnesses giving the whole sequence from the time the woman Mrs. Brown, and Walks On Top and two other Indians were discovered shortly before sun-up behind a Spokane tavern in an automobile by sheriff's deputies. After reinforcements arrived, the officers took the four Indians momentarily into custody. (This was still in the State of Washington and off the reservation.) But the Indians were more than a match for the officers, and soon they had the officers locked up in the paddy wagon section of the automobile.
After locking up the Spokane authorities and leaving them behind the Indians fled by car to their reservation in Idaho where the shooting eventually occurred.
We find unobjectionable the relating of the entire sequence of the day. The events of the day explained the last act,1 the shooting, including the fact that George was shot by a gun taken by Walks On Top from the Washington officers.2 Actually, until the tragic ending, the events had been rather funny and not very prejudicial. They paled into insignificance in prejudice when Walks On Top shot George in the back.
Appellant next tries to develop the contention that there is present here no violation of 18 U.S.C. § 111 and 18 U.S.C. § 1114. He argues that Officer George was not acting as a federal officer when shot. According to appellant, the evidence shows that George was with Sheriff Baltz of Benewah County, that he...
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...v. United States, 506 F.2d 561 (8th Cir. 1974), cert. denied 420 U.S. 978, 95 S.Ct. 1405, 43 L.Ed.2d 659 (1975); Walks on Top v. United States, 372 F.2d 422, 425 (9th Cir.), cert. denied, 389 U.S. 879, 88 S.Ct. 182, 19 L.Ed.2d 170 (1967). In addition, federal enclave statutes which define c......
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