Azure v. United States, 15689-15691.
| Decision Date | 16 October 1957 |
| Docket Number | No. 15689-15691.,15689-15691. |
| Citation | 248 F.2d 335 |
| Parties | Henry Joseph AZURE, Appellant, v. UNITED STATES of America, Appellee. Francis B. ZAHN, Jr., Appellant, v. UNITED STATES of America, Appellee. Robert COTTONWOOD, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. K. Murray, Bismarck, N. D., for appellants.
Ralph B. Maxwell, Asst. U. S. Atty., Fargo, N. D. (Robert Vogel, U. S. Atty., Fargo, N. D., was with him on the brief), for appellee.
Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.
Appellants Henry Joseph Azure, Francis B. Zahn, Jr. and Robert Cottonwood were indicted with one Barney Crow Necklace for the crime of burglary. Before trial Barney Crow Necklace pleaded guilty to the charge and was sentenced, later becoming a witness for the government.
The indictment charged:
"That on or about the 21st day of May, 1955, within the Indian country, in the County of Sioux, State of North Dakota, within the boundaries of the Standing Rock Indian Reservation, and within the exclusive jurisdiction of the United States, the defendants, Henry B. Azure, an Indian, Barney Crow Necklace, an Indian, Francis B. Zahn, Jr., an Indian, and Robert Cottonwood, an Indian, did commit the offense of burglary in that they broke into and entered a building, to-wit: the Legion Bar in Fort Yates, North Dakota, with intent to steal."
To this indictment the appellants pleaded not guilty and on trial of the action introduced evidence tending to prove an alibi. At the close of the government's testimony appellants moved for judgment of acquittal, which motion was denied and at the close of all the testimony this motion was renewed and again denied and the case was sent to the jury on instructions to which appellants saved no exceptions.
On this appeal appellants seek reversal on the following grounds: (1) insufficiency of the evidence to establish that the crime was committed on an Indian Reservation by enrolled Indians, (2) insufficiency of the evidence to sustain the verdict of conviction, (3) appellants' evidence shows clearly that they are not guilty and (4) errors of the Court in the admission in evidence of inadmissible testimony.
In lieu of a printed record the case is presented on a typewritten record. This record is a mere skeleton and does not contain, as required by our Rule 10(b), 28 U.S.C.A., "the complete instructions of the trial court", nor does it contain, reduced to narrative form or otherwise, any evidence, and although appellants challenge rulings upon evidence in their brief the record does not contain such evidence, the objections interposed thereto, nor the rulings questioned. Appellants also challenge the sufficiency of the evidence but the typewritten record does not contain in narrative form "all evidence received upon the trial or hearing pertinent to that question", but in fact contains no evidence whatever; neither does it contain copy of the motion for acquittal interposed at the close of the government's testimony and at the close of all the testimony. The government challenges the sufficiency of the brief in that although complaint is made as to certain rulings of the court on the admissibility of evidence the statement in the brief does not contain "the evidence referred to, and any objections or other equivalent action taken relative thereto, together with the rulings of the court thereon, giving the pages of the printed record on which the quotations appear", as required by Rule 11(b) of the Rules of this Court. There has been filed with the clerk of this Court a transcript of the evidence produced at the trial and in view of the state of the record and all the attending circumstances we shall consider this transcript as supplementing the typewritten record.
It is now argued that the evidence was insufficient to establish that the crime was committed on an Indian reservation by enrolled Indians. The evidence showed that the so-called Legion Bar located in Fort Yates, North Dakota, was burglarized and certain liquors stolen therefrom. In support of the charge that this burglary was committed in the Indian country the government produced the witness Vernon Thompson, Real Property Assistant for the Bureau of Indian Affairs, at Fort Yates, North Dakota, who testified...
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U.S. v. Indian Boy X
...and suffice for purposes of the statute, at least where there is absolutely no evidence to the contrary. See also Azure v. United States, 248 F.2d 335 (8th Cir. 1957); cf. United States v. Heath, 509 F.2d 16 (9th Cir. 1974), where this court held tribal enrollment sufficient to allege juris......
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...v. Indian Boy X, 565 F.2d 585, 594 (9th Cir.1977); United States v. Lossiah, 537 F.2d 1250, 1251 (4th Cir.1976); Azure v. United States, 248 F.2d 335, 337 (8th Cir.1957)); see also Scrivner v. Tansy, 68 F.3d 1234, 1241 (10th Cir. 1995); United States v. Lawrence, 51 F.3d 150, 152 (8th Lack ......
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