402 F.2d 571 (9th Cir. 1968), 22524, Mull v. United States

Docket Nº:22524.
Citation:402 F.2d 571
Party Name:Charles MULL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:October 28, 1968
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 571

402 F.2d 571 (9th Cir. 1968)

Charles MULL, Appellant,


UNITED STATES of America, Appellee.

No. 22524.

United States Court of Appeals, Ninth Circuit.

October 28, 1968

Paul G. Rees, Jr. (argued), of Rees, Estes & Browning, Tucson, Ariz., for appellant.

Philip S. Malinsky (argued), Asst. U.S. Atty., Edward E. Davis, U.S. Atty., Philip Fahringer, Asst. U.S. Atty., Tucson, Ariz., for appellee.

Page 572

Before BARNES and DUNIWAY, Circuit Judges, and McNICHOLS, [*] district judge.

DUNIWAY, Circuit Judge:

The indictment in this case reads as follows:

'On or about the 4th day of June, 1966, within the District of Arizona, CHARLES MULL, an Indian, and on the San Carlos Apache Indian Reservation, did wilfully, unlawfully and feloniously, without just cause or excuse, upon the person of one Juana Brooks, an Indian, commit an assault with a dangerous weapon, to-wit: a razor knife, with the intent on the part of the said CHARLES MULL to do bodily harm to the said Juana Brooks, in violation of 18 U.S.C. § 1153.'

Mull was found guilty by a jury and sentenced to five years. The evidence shows that he attacked Juana Brooks with a razor knife and cut her severely. It was stipulated that the act charged occurred within the boundaries of the San Carlos Apache Indian Reservation, in the District of Arizona, and that Charles Mull is an enrolled member of the San Carlos Apache Tribe of Indians. We consider appellant's contentions seriatim.

1. Constitutionality of 18 U.S.C. § 1153.

At the time of the offense, the pertinent statutes were these:

(1) 18 U.S.C. § 1153 (1964): 'Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, * * * assault with a dangerous weapon * * * within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States * * *.'

(The 1968 amendment, 80 Stat. 1100, is not applicable to this case.)

(2) 18 U.S.C. § 1152 (1964): 'Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country * * *' (3) 18 U.S.C. § 3242 (1964): 'All Indians committing the following offenses; namely * * * assault with a dangerous weapon * * * on and within the Indian country, shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.'

(The 1968 amendment, 80 Stat. 1101, is not applicable to this case.)

(4) 18 U.S.C. § 113 (1964): 'Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows: * * * (c) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by fine of not more than $1,000 or imprisonment for not more than five years, or both.'

These statutes (except section 113, which is of broader application) are the product of a long history of attempts by Congress to deal with crimes in the 'Indian Country,' and they are to be considered together. Section 113 defines the offense with which Mull was charged. It would also be applicable if a non-Indian were similarly charged under section 1152.

Mull argues that section 1153 is unconstitutional because it denies him equal protection and therefore due process. The argument is based upon the claim that the section creates a separate set of rules based upon racial characteristics, which is alleged to be not constitutionally permissible. Reliance is upon

Page 573

Loving v. Commonwealth of Virginia, 1967, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; McLaughlin v. State of Florida, 1964, 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222; Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884; Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Oyama v. State of California, 1948, 332 U.S. 633, 663, 68 S.Ct. 269, 92 L.Ed. 249 (Murphy, J., concurring); Sipuel v. Board of Regents, etc., 1948, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Edwards v. People of State of California, 1941, 314 U.S. 160, 185, 62 S.Ct. 164, 86 L.Ed. 119 (Jackson, J., concurring).

The government replies that the question has been decided against Mull by this court in Gray v. United States, 1968, 394 F.2d 96, 98. Mull urges that that decision should be overruled. We do not reach the question.

Prosecution for violation of section 113 can be had under either section 1153 if the defendant be an Indian, or section 1152 if he be a non-Indian. Prosecution under section 1153 must be in the federal court. In re Carmen's Petition, N.D. Cal., 1958, 165 F.Supp. 942, aff'd per curiam sub nom. Dickson v. Carmen, 9 Cir., 1959, 270 F.2d 809, cert. denied, 361 U.S. 934, 80 S.Ct. 375, 4 L.Ed.2d 355. If the offense be by a non-Indian against an Indian, prosecution under section 1152 must also be in the federal court. Donnelly v. United States, 1913, 228 U.S. 243, 272, 33 S.Ct. 449, 57 L.Ed. 820; Williams v. United States, 1946, 327 U.S. 711, 714, 66 S.Ct. 778, 90 L.Ed. 962. Thus Mull is not subject, as to the offense of which he was convicted, to any different charge, court, or penalty than he would have been were he not an Indian. 1

It is true, that, if the assault were upon a non-Indian, and if Mull were a non-Indian, the courts of Arizona would have jurisdiction, and its laws would be applicable. The Supreme Court has so held, in spite of what appears to us to be the plain language of section 1152. People of State of New York ex rel. Ray v. Martin, 1946, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261; United States v. McBratney, 1881, 104 U.S. 621, 26 L.Ed. 869. But this is not something of which Mull can complain. He was not charged with assault upon a non-Indian. And the Arizona penalty for a comparable offense is a maximum of $5,000 fine or ten years imprisonment or both (Ariz.Rev.Stat. § 13.249), while the federal penalty is a maximum of $1,000 fine or five years imprisonment, or both.

In short, as here applied, the statutes have not subjected Mull to any invidious discrimination based upon his Indian race. We deal here only with this appellant and the offense of which and the statutes under which he was convicted. We express no opinion as to other offenses, or as to the effect of later...

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