Blackburn v. State

• Decision Date: 22 November 1960
• Docket Number: No. 2957,2957
• Citation: 357 P.2d 174
• Parties: John BLACKBURN, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). Orlando ANTELOPE, Jr., Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 174

357 P.2d 174

John BLACKBURN, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

Orlando ANTELOPE, Jr., Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 2957.

Supreme Court of Wyoming.

Nov. 22, 1960.

John J. Spriggs, Sr., Lander, and John J. Spriggs, Jr., Washington, D. C., for appellant.

Norman B. Gray, Atty. Gen., and W. M. Haight Deputy Atty. Gen., Cheyenne, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This case purports to be an appeal on behalf of John Blackburn and Orlando Antelope, Jr., from a judgment of conviction against them as hereinafter mentioned. It is doubtful at least that we have any case before us except on behalf of the appeal of John Blackburn in view of the fact the record before us contains no information against Antelope or sentence against him. The only reference to any sentence is by counsel for defendant Blackburn in their notice of appeal. In view of our conclusion herein, the point is not important.

An information was filed against John Blackburn by the County and Prosecuting Attorney of Fremont County, Wyoming, charging that on April 2, 1958, John Blackburn:

'II.

'did wilfully, unlawfully and feloniously, have carnal knowledge of a woman, to-wit: Lena Reyes, forcibly and against her will, and

'III.

'did wilfully and unlawfully violate the personal liberty of another, to-wit: Lena Reyes, by confinement and detention without legal authority and against the will of said Lena Reyes, and

* * *

* * *

'V.

'did wilfully, unlawfully and feloniously, perpetrate an assault and battery upon a human being, to-wit: Lena Reyes, with intent to commit a felony, to-wit: Robbery * * *.'

Other charges are contained in the information but in view of the fact that the defendant Blackburn was convicted only of the matters above mentioned we need not set out the remaining part of the information. Defendant John Blackburn pleaded not guilty. Apparently an information had been filed against Orlando Antelope, Jr., and C. Anthony Brown. By and through their attorney, E. L. Newton, it was stipulated that the cases against Blackburn, Antelope and C. Anthony Brown might be consolidated. After the court gave instructions to the jury, the latter returned a verdict finding the defendant John Blackburn guilty of the crime of rape as charged in the second count of the information, guilty of the charge of false imprisonment as charged in the third count of the information and guilty of the crime of assault and battery with intent to commit a felony, to wit, robbery, as charged in the fifth count of the information. A like verdict was returned against Antelope. On November 14, 1958, the court sentenced the defendant Blackburn to imprisonment in the penitentiary as follows:

'Upon the count of rape as by law defined, not less than two years nor more than four years;

'As to the count of assault and battery with the intent to commit a felony, to-wit: robbery as by law defined, not less than one year nor more than two years, the terms of confinement to run concurrently,'

John Blackburn by his attorney, E. L. Newton, on November 18, 1958, gave notice that he appealed from the judgment rendered on November 14, 1958. Thereafter E. L. Newton received permission from the court to withdraw from the case as attorney for the defendant Blackburn. Thereafter John J. Spriggs, Sr., and John J. Spriggs, Jr., appeared as attorneys for the defendant and appellant Blackburn. On December 10, 1958, the defendant Blackburn by and through his attorneys filed a motion to vacate, set aside and quash the information, verdict, judgment and sentence. The motion stated that all proceedings were without jurisdiction, void, and of no force or authority in law because: (a) The court was without jurisdiction over defendant and without jurisdiction over the alleged offenses and subject matter; (b) the court was without jurisdiction to arrest, detain, charge, try, convict and sentence defendant for the alleged offenses; (c) the defendant at the time of the alleged offenses was an Arapahoe Indian living upon and under the charge of the Superintendent of the Wind River Indian Reservation in Fremont County, Wyoming, and was at all of said times a ward of the Government of the United States; Lena Reyes, named in said proceedings as complaining witness against whom said alleged offenses were committed, was at all times an Indian woman living on said reservation; (d) the venue of said alleged offenses as charged in the information where said alleged offenses were committed was in Indian country, to wit: 'at a point approximately nine miles North of Riverton, Fremont County, Wyoming,' and was within the exterior boundaries of the Wind River Indian Reservation in Fremont County, Wyoming, a point within the exclusive jurisdiction of the United States; and (e) the alleged offenses were part of those mentioned in 62 Stat 827, as amended, 18 U.S.C.A. § 3242, the exclusive jurisdiction of which was in the federal courts of the United States. The court on November 10, 1959, overruled the motion, holding that the crime was not committed within the exterior boundaries of the Wind River Reservation as then existing. Thereupon, on November 13, 1959, a notice of appeal was filed both on behalf of John Blackburn and Orlando Antelope, Jr., from the order of the court dated November 10, 1959.

1. Venue.

Counsel for appellants contend that the venue has not been shown to have been in Fremont County, Wyoming. We might say in the first place that counsel in designating as to what should be contained in the record stated in part as follows: 'The evidence of defendant John Blackburn, and the evidence of Orlando Antelope Jr and the evidence of complaining witness Lena Reyes.' The certificate of the court reporter states:

'I, Leroy Walker, an official court reporter of the Seventh Judicial District of Wyoming, do hereby certify that the foregoing is a true and accurate transcript of the testimony of the witnesses Lena Reyes, John Blackburn and Orlando Antelope, Jr., and that said transcript contains all of the testimony of the said witnesses and all proceedings which occurred during the course of the testimony of the said witnesses, upon the trial of the hereinbefore-captioned cause.'

It will be noted that the certificate does not state that the record contains all the evidence introduced in the trial of the cause. It is stated in 4A C.J.S. Appeal and Error § 1172 that the question involving the sufficiency of the evidence cannot be reviewed unless all, or substantially all, the evidence bearing on the question is in the record. To that effect also are the cases of this court--Cadoma Sheep Co. v. Doughaard, 41 Wyo. 502, 287 P. 436; Mulhern v. Mahs, 41 Wyo. 214, 284 P. 123. It is not improbable that some or many more witnesses testified in the cause who might have established the venue more definitely than it was by the witnesses as hereinbefore mentioned. Aside from that, however, we think there is sufficient evidence contained in the record to indicate that as a matter of fact the alleged crimes took place in Fremont County, Wyoming. As shown by the evidence, they took place on or near a highway a comparatively short distance north or northeast of Riverton, Wyoming, in the area known as 'Riverton Project.' We take judicial notice of the fact that Riverton is located in Fremont County, Wyoming. We have before us a map of this state issued by the United States Department of the Interior. We take judicial notice of this map. Robinson Mercantile Co. v. Davis, 26 Wyo. 484, 187 P. 931; Bonner v. Jackson, 158 Ark. 526, 251 S.W. 1; 31 C.J.S. Evidence § 32, p. 576. The map shows that Riverton and the area for many miles north of Riverton is not contained in the Wind River or Shoshone Indian Reservation as now existing but is contained in Fremont County, Wyoming. So the contention above mentioned must be overruled.

2. Indian Country.

The complaining witness and the two defendants herein are Indians and it is the contention of appellants herein that because they are Indians and because, as they contend, the crimes took place in Indian country the court had no jurisdiction in this case. 62 Stat. 758, as amended, 18 U.S.C.A. § 1153, relating to crimes and criminal procedure, provides as follows:

'Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny 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.

'As used in this section, the offense of rape shall be defined in accordance with the laws of the State in which the offense was committed, and any Indian who commits the offense of rape upon any female Indian within the Indian country, shall be imprisoned at the discretion of the court.

'As used in this section, the offense of burglary shall be defined and punished in accordance with the laws of the State in which such offense was committed.'

The crimes involved in the case at bar fall within the provisions of the foregoing section if committed within Indian country. By 62 Stat. 757, as amended, 18 U.S.C.A. § 1151, Congress defined 'Indian country' as follows:

'* * * (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (...