Beebe v. United States

• Decision Date: 03 January 1882
• Citation: 11 N.W. 505,2 Dak. 292
• Parties: Beebe v. United States.
• Court: South Dakota Supreme Court

11 N.W. 505

2 Dak. 292

Beebe

v.United States.

Supreme Court of the Territory of Dakota.

Filed January 3, 1882.

Writ of error to the district court of the second judicial district.Dewey & French, for plaintiff. Hugh J. Campbell, U. S. Atty., for defendant.

SHANNON, C. J.

Silas Frank Beebe was indicted in the court below for the murder of George Landphere, and was convicted of that crime and sentenced. In the indictment it is charged that the offence was committed on the fourth day of July, 1879, “at a place near the Crow Creek Indian Agency, in the Indian country, in a place and district of country under the exclusive jurisdiction of the United States, in the said second judicial district and territory of Dakota, and within the jurisdiction of this court.” No exception whatever was taken to the charge of the court to the jury. In fact, all exceptions taken during the course of the trial were abandoned by the counsel for the defence, except the following, which alone are set forth in the assignment of errors:

“ASSIGNMENT OF ERRORS.

(1) The court erred in allowing Marvin H. Somers to testify to an alleged confession of the defendant Beebe, for the reason that it was not sufficiently shown, as a preliminary, that such alleged confession was voluntary.

(2) The court erred in overruling the motion of the defendant to exclude from the jury the testimony of said Marvin H. Somers touching an alleged confession of the defendant, for the reason that said Somers did not recollect, and could not and did not testify, to all that was said by the defendant on the subject at the time of making the alleged confession.

(3) The court erred in allowing Fred Hemingway, Viola Bently, and Jane Vanmeter, witnesses sworn and examined on the part of the United States, to testify as to certain alleged admissions and statements of the defendant, to such persons alleged to have been made, for the reason that such alleged admissions and statements were not of the offence charged in the indictment.

(4) The court erred in admitting, as against the defendant's objection, the documentary testimony offered and presented by the United States attorney, for the reason that such testimony was incompetent, irrelevant, and not the best evidence to establish certain facts pertinent to the case.

(5) The court erred in overruling the defendant's motion that the court instruct the jury to return a verdict of not guilty upon all the counts in the indictment, for the reason that the prosecution had not shown that the court had jurisdiction of the offence charged in the indictment.

(6) The jury, finding the verdict of guilty against the defendant, was not a legal body, for the reason that it was not selected, drawn, and summoned as required by law.

(7) The court erred in overruling the defendant's motion for a new trial in said action, for reasons apparent on the face of said motion.

(8) The court erred in overruling the defendant's motion in arrest of judgment in said action, for reasons apparent on the face of said motion.

The defendant, therefore, for the errors assigned, hereby prays the honorable court for a reversal of the judgment heretofore entered against him in the above-entitled action.”

As to the first and second assignments it is to be observed that the witness, Marvin H. Somers, was first interrogated as to any threats or promises made to the accused. He asserted that none were made, and that no hope was held out to him “by way either of inducement or of fear.” On this preliminary inquiry the defendant did not at the time cross-examine or offer any contradictory evidence. After the confession was elicited, and at the conclusion of the examination in chief, the defendant's counsel made a motion to strike out the evidence, which was refused, and an exception taken. In the record before us no exception at the time, and just after the preliminary examination, appears as to the admissibility of the confession, and there was nothing to show but that it was voluntary, and without fear or hope. The regular cross-examination left the point in the same condition. No error is perceived in the refusal of the court to strike out or exclude from the jury the evidence of that witness; and this is especially made manifest when the unusually liberal instructions to the jury, on the subject of confessions, are fully considered. On this point the counsel of defendant presented four propositions to the court, which were all given to the jury without any alteration.

As to the third assignment it has relation to certain statements made by the accused to the three witnesses named, shortly after the homicide. After close scrutiny we can find no error in this. This voluntary declaration could not be excluded, and it was left to the jury whether or not they had reference to the crime committed and to the guilt of the defendant. The court expresly charged the jury to “disregard all admissions and confessions which are not legally identified,” and that such identification means that the jury must be satisfied from the evidence that such confessions and admissions relate to the killing of the deceased, Landphere, and the guilt of the accused, Beebe. And it was so charged in the very words of defendant's counsel; and this was immediately followed by the further instruction, “that all reasonable doubts must be resolved in favor of the accused.” The evidence was legally received, and its character and weight were properly left with the jury.

The documentary testimony referred to in the fourth assigment of errors is mostly of the exact nature and kind detailed in the case of McCall v. U. S. 1 Dak. 320. It relates to certain books and maps printed and published at the city of Washington, at the government printing office, offered by the prosecution to show jurisdiction of the court over the locus in quo as being Indian country. It includes the executive order or proclamation of President Grant, dated January 11, 1875, making an addition to the Sioux Indian reservation. It also embraces a number of maps from the office of the surveyor general of Dakota, in connection with the testimony of E. F. Higbee, Capt. Dougherty, W. H. H. Beadle, and Newton Edmunds. We have already and carefully gone over the grounds in regard to this class of evidence, in the case above referred to, and we can now see no reason to change our determination. There was no error in admitting the executive order, nor was there any in receiving the maps from the surveyor general's office.

The fifth assignment can be briefly disposed of by stating that there was abundant and undoubted evidence to show that the court had jurisdiction over the place where the crime was committed to have granted such motion, and to have so instructed the jury would have been a violation of duty and of law. The evidence on this subject was not confined merely to the executive orders of Presidents Grant and Hayes, in 1875 and 1879, but it was also extended to show the original formation of the old Winnebago and Sioux Indian reservations on the east side of the Missouri river, in the latter of which the crime was shown to have been committed. By the treaty of April 29, 1868, ratified February 16, 1869, it was admitted by both parties that there were at that date “existing reservations on the east bank of the river,” all of which were thereby fixed as additions to the main reservation on the west side of the river. The evidence tended to prove the surveying and platting of the small reservations above named as early as 1863, as well as the continued existence of the Crow Creek reservation and agency from 1865 until the date of the trial and afterwards. The latter is named on the maps as the Sioux Indian reservation.

It is asserted in the sixth assignment that the jury was not a legal body, for the reason that it was not selected, drawn, and summoned as required by law. It appears that the panel, both of the grand and petit juries, was summoned as usual by “open venire;” that is to say, that the marshal of the United States for the territory selected and summoned them as at common law. It is contended that this mode of selection of jurors in the district court for the entire district is contrary to law, and in opposition both to the Territorial and United States Statutes. The answer to this is that the legislative assembly of the territory has never provided for the selection and drawing of jurors to serve in such court; and in the absence of a statute making such provision, the rule of the common law must prevail. The legislature has contented itself with enactments regulating juries in the district courts of counties and subdivisions, but it has, perhaps wisely, gone no farther. And, again, the act of congress approved June 30, 1879, (four days before the homicide,) in so far as it relates to the drawing of jurors, is not applicable. That act only embraces courts of the United States in the states of the Union. Territories are not mentioned in it, but “ boxes used by the state authorities” are specified.

From the first organization of courts in Dakota, sitting as courts of a district, the universal practice has been such as is now complained of. Moreover, according to the constitution, (article 5 of amendments,) as to a case like this, no person can be held to answer unless on a presentment or indictment of a grand jury; nor can he be deprived of life, liberty, or property without due process of law. What is meant by the words “due process of law” is adequately explained in the case of People v. Sponsler, 1 Dak. 298. The supreme and district courts of the territory possess common-law jurisdiction and authority for redress of all wrongs committed against the constitution or laws of the United States or of the territory, affecting persons or property. And possessing such jurisdiction the procedure practice and pleadings must be as at common law, unless the common-law methods have been changed, modified, or...