Barclay v. U.S.

• Decision Date: 16 July 1902
• Citation: 69 P. 798,11 Okla. 503,1902 OK 19
• Parties: BARCLAY et al. v. UNITED STATES.
• Court: Oklahoma Supreme Court

69 P. 798

11 Okla. 503, 1902 OK 19

BARCLAY et al. v. UNITED STATES.

Supreme Court of Oklahoma

July 16, 1902

Syllabus by the Court.

1. Where one steals property in the Indian Territory and carries it into the Osage Indian reservation, in Oklahoma, such acts constitute a public offense under the laws of the territory of Oklahoma, but do not constitute larceny as defined by the laws of the United States.

2. There are no common-law offenses under the laws of the United States, and the courts of the United States do not exercise any common-law jurisdiction, except where conferred by act of congress, and it is not a crime against the laws of the United States to steal property in one of the states or territories and bring it into a place within the exclusive jurisdiction of the United States.

3. The stealing of property in the Indian Territory and bringing it into this territory is larceny in the territory. Every moment's possession by the thief is a continuance of the trespass, and amounts, in legal contemplation, to a new caption and asportation.

4. A private person may arrest another for a public offense committed or attempted in his presence, and when such party in is the actual commission of an offense he may be arrested without a warrant, and without being first informed of the cause thereof.

5. One who his stolen the property of another is an the commission of such offense at every place, and so long as he remains in possession of the stolen property.

6. If property is taken and appropriated in a foreign state or county under such circumstances as would constitute larceny in this territory if the act had been consummated here, and the property is brought into this territory by the thief, the crime is the same as larceny of such property within this territory; and the question of the larceny in such foreign place is to be determined by the laws of this territory, and not by the laws of the place where the property was originally stolen.

7. Murder, when committed within the Osage, Indian reservation by a white person, is punishable under the laws of the United States and by the United States courts.

8. An instruction to the jury, although erroneous, is not reversible, error, unless it might have misled or confused the jury to the prejudice of the complaining party.

Error from district court, Pawnee county; before Justice Bayard T Hainer.

George Barclay and James Brummet were convicted of murder, and bring error. Affirmed.

C. A Chasteen and James P. Neal, for plaintiffs in error.

Horace Speed, U.S. Atty., J. W. Scothorn, and B. S. McGuire, Asst U.S. Attys., for the United States.

BURFORD C.J.

The plaintiffs in error, George Barclay and James Brummet, were jointly indicted, tried, and convicted for the crime of murder committed in the Osage Indian reservation, and sentenced to be hanged. They have failed a joint petition in error in this court.

It appears from the record that on the 4th of July, 1900, J. I. Poole was residing in the Cherokee Nation, in the Indian Territory, and on that day he went with his family to a celebration some few miles from his home. During their absence his dwelling house was entered, and there was stolen from him two blankets, a pair of pants, a bridle, and a razor. He returned to his home in the evening between 6 and 7 o'clock, and found that his house had been entered, and drawers, doors, and cupboards opened, and their contents scattered about. He missed the stolen articles, and, as it was near night, he waited until the next morning, and then procured some of his neighbors and started in pursuit of the thieves, and to recover the property. They traveled on into the Osage Nation, and on the night of the 7th the party stopped at the home of John Harlow, in the Osage country, in Oklahoma. On the morning of the 8th, while feeding their horses, and assisting Mr. Harlow, whose wife was sick, in getting breakfast and doing the chores, Barclay, Brummet, and a companion, called Kennedy, rode up to the barn lot, and inquired if they could get breakfast. They were directed to go to the house and ask Mr. Harlow, which they did, and were informed that they could have breakfast. While breakfast was being prepared, Mr. Poole recognized his stolen pants on one of these parties, and his blankets and his bridle and a stolen saddle in their possession. Poole and his party had left their arms at the house, and Brummet, Barclay, and Kennedy were all armed. While they were getting ready for breakfast, Poole notified his friends that his property was in the possession of the newcomers; and it was then arranged that one of Poole's party (Jesse Spencer) should eat breakfast with the three new arrivals, and, while they were sitting at the breakfast table, Poole and his two companions, Clay and Dunlap, would arrest the party. The eating table was under an arbor a few feet south of the dwelling house, and a short distance east of a small smoke house used for cooking purposes. When breakfast was ready, Spencer and Barclay took seats on the north side of the table, facing south; Brummet sat on the south side, facing north; and Kennedy was seated at the east side, facing west. Poole was in the main dwelling house, north of the table. His Winchester rifle was standing against the south side of the room, near the door. Dunlap was in the cook house, assisting in the cooking, and armed with a 32 caliber revolver. Clay was in the main building, and had a double-barrel shotgun. Mr. Harlow was in the house with his wife, and heard all that transpired, but saw none of it. When the parties were seated at the table as before stated, Mr. Pool stepped from inside the dwelling house into the south door, facing the table, and said: "Throw up your hands. Consider yourselves under arrest." And he immediately stepped out and picked up the gun standing against the house. Dunlap stepped to the door of the cook house, with his revolver drawn on the parties, and Clay threw down his shotgun on Barclay. Immediately on Poole's demand being heard, Spencer, Barclay, and Kennedy rose from the table and threw up their hands. Brummet did not rise or throw up his hands, but attempted to draw his revolver, which caught on the chair or his clothes, and Poole rushed at him and clubbed his rifle and struck him. He dodged away from the table and got his revolver out, and Poole struck it from his hands with the rifle. In the meantime Barclay had dodged away and got back of the cook house. He then drew his revolver and turned, and, holding it in both hands, shot and killed Poole, who was still trying to subdue Brummet. Spencer then short at Barclay and struck him on the leg, making a slight skin wound. Barclay then threw up his hands and surrendered. Dunlap had his gun drawn on Barclay during the excitement, but when Brummet and poole were scuffling they came between Barclay and Dunlap, and Barclay quickly jumped behind the corner of the cook house. Dunlap snapped the gun at him, but it failed to discharge. There was some evidence to the effect that three shots were fired, but Mr. Harlow, who was in the house, is positive that only two were fired; and Barclay admits firing one of these, and Mr. Spencer the other, and no one else was seen to fire a shot. Poole, Spencer, Dunlap, and Clay were all residents of the Cherokee Nation, in the Indian Territory, and were hunting for the parties who had stolen Poole's property, with the purpose of apprehending them. Barclay, Brummet, and Kennedy had got together at Galena, Kan., about two weeks previous to the homicide, and had been traveling together through parts of Kansas, Indian Territory, and Oklahoma. Brummet had stolen the horse and saddle he was riding. Kennedy, whose real name was Ben Howe, was an escaped convict from the Kansas penitentiary. Brummet had served a term in the penitentiary for horse stealing, and the party had stolen the property of Poole, and had it in their possession when arrested. Barclay and Brummet were indicted in the district court of Pawnee county, on the federal side of the court, for the murder of Poole. Both were convicted and sentenced to be hanged. The Osage Nation, where the homicide occurred, was at the time attached to Pawnee county for judicial purposes.

The theory of the prosecution on the trial of the cause was that the prisoners had stolen Poole's property in the Cherokee country, and brought it into Oklahoma, which, under the laws of the territory, constitutes larceny in Oklahoma; that the stolen property was in their possession at the time of the arrest, and that the parties making the arrest, although not officers, were authorized to make the arrest; and that the killing of Poole in resisting arrest constituted murder. The defense relied upon the theory that they were being arrested for a past crime, which was only a misdemeanor, the value of the property taken being less than $20, and that they could not arrest the prisoners without a warrant, and that as they were not officers, and had no warrant, and as the offense was not being committed in the presence of the persons attempting the arrest, the defendants had the right to resist such unlawful arrest, even to the taking of life. The trial court adopted the theory of the prosecution, and the instructions to the jury were in harmony with that theory.

Counsel for plaintiffs in error contend that no crime had been committed in Oklahoma for which an arrest was authorized. We think the law is otherwise. Section 2384, St. 1893, provides "Every person who steals the property of another in any other state or country, and brings the same into this territory, may be convicted and punished in the same manner as if such larceny had been committed in this territory, and such larceny may be charged to have been...