Carmen, Application of

Decision Date02 August 1957
Docket NumberCr. 5667
Citation48 Cal.2d 851,313 P.2d 817
CourtCalifornia Supreme Court
PartiesApplication of Rayna Tom CARMEN for a Writ of habeas Corpus.

Mason v. Bailey, Madera, and Leonard J. Bloom, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Arlo E. Smith, Deputy Atty. Gen., for respondent.

SPENCE, Justice.

Petitioner, Rayna Tom Carmen, is confined in the state prison at San Quentin under judgments of conviction of first degree murder and of assault with intent to commit murder. He seeks his release from custody upon alleged jurisdictional grounds. Petitioner was first convicted of the two offenses in the Superior Court of Madera County in 1950. Wilbur Dan. McSwain was the victim of the murder and Alvin McSwain was the victim of the assault. The crimes were committed near the home of the victims. The initial altercation between the parties had occurred earlier the same morning at a point in Madera County some miles distant from the scene of the crimes. After that altercation petitioner had driven to his home, had obtained a gun, and had then driven to the home of the victims to await their return. The shooting occurred immediately following their return, while Alvin Mc,Swain was still in an automobile and Wilbut Dan McSwain was standing near it.

At the first trial it was alleged and proved that the crimes had been committed in Madera County. Petitioner was convicted of both offenses and was sentenced to imprisonment for the term prescribed by law on the assault count and to suffer the death penalty on the murder count. Upon appeal, this court affirmed the assault conviction and reversed the murder conviction. People v. Carmen, 36 Cal.2d 768, 228 P.2d 281.

At the second trial in the Superior Court of Madera County petitioner was again convicted of first degree murder for the killing of Wilbur Dan McSwain and was again sentenced to suffer the death penalty. It was again alleged and proved that the murder had been committed in Madera County.

At the time of oral argument before this court on the appeal from the second murder conviction, it was suggested for the first time that facts might be adduced showing that the murder had been committed on a small tract of land within Madera County known as an 'Indian allotment,' that such allotment constituted 'Indian county,' and that petitioner was an 'Indian', within the meaning of those terms as used in certain federal statutes, with the result that exclusive jurisdiction over the offense might be vested in the federal courts. (See §§ 1151, 1152, 1153, and 3242, Title 18, U.S.C.A. as amended May 24, 1949.) Petitioner thereupon filed an application to produce on the appeal additional evidence relating to the newly suggested facts. This court denied the application and affirmed the second judgment of conviction. People v. Carmen, 43 Cal.2d 342, 273 P.2d 521. Noting that the facts shown in the trial court record were insufficient to show exclusive jurisdiction in the federal courts, this court stated that 'Since the defendant committed the crime in a county of this state, it may not be assumed that any special circumstances existed which would deprive the state of jurisdiction.' 43 Cal.2d at page 349, 273 P.2d at page 525.

Thereafter petitioner commenced this habeas corpus proceeding, claiming a lack of jurisdiction in the courts of this state on the basis of allegations that he and the McSwains were 'Indians' and that the murder and the assault had been committed in 'Indian country.' Because of the alleged jurisdictional questions involved, this court issued a writ of habeas corpus and made an order of reference for the purpose of determining the status of petitioner and Wilbur Dan McSwain, as well as the locus of the crimes. Hearings were conducted and the referee filed his finding with this court.

The People contend that the evidence is insufficient to sustain the referee's findings concerning the status of petitioner and Wilbur Dan McSwain. Upon further consideration, however, we have concluded that it is unnecessary to determine the sufficiency of the evidence to support the referee's findings or the adequacy of said findings. We have reached this conclusion because we are of the opinion that in the absence of exceptional circumstances, which are not present here, petitioner may not contest, in this collateral attack upon the final judgments of conviction, the trial court's determination and exercise of jurisdiction, upon the basis of new and additional facts which do not appear in the trial court record.

We are here concerned with the nature of the inquiry which may be made on habeas corpus where it is claimed that a trial court of general jurisdiction lacked jurisdiction over an offense by reason of the status of the parties involved and the place at which the crime occurred. Traditionally the inquiry on habeas corpus has been limited to an examination of facts appearing upon the face of the record and no evidence dehors the record has been received to impeach the judgment. In re Selowsky, 189 Cal. 331, 208 P.2d 99; In re Stevenson, 187 Cal. 773, 204 P. 216; In re Nicholson, 24 Cal.App.2d 15, 74 P.2d 288; In re Mirando, 15 Cal.App.2d 443, 59 P.2d 544; In re Murphy, 79 Cal.App. 64, 248 P. 1044; In re Ballas, 53 Cal.App. 109, 199 P. 816; In re Todd, 44 Cal.App. 496, 186 P. 790; see, also, 39 C.J.S. Habeas Corpus § 16, p. 456. However, it was said in In re Connor, 16 Cal.2d 701, 712, 108 P.2d 10, 17, that '(t)he scope of inquiry on habeas corpus in this state may * * * under exceptional circumstances, extend over the entire course of proceedings in the lower courts * * * and may embrace additional evidence received by this court either directly or under an order of reference.'

The scope of inquiry has been so extended in instances where a petitioner has contested the validity of a final judgment of conviction upon the ground that he had been denied the aid of counsel (In re Connor, supra, 16 Cal.2d 701, 108 P.2d 10); or that his conviction had been secured solely by perjured testimony knowingly used by prosecuting officials (In re Mooney, 10 Cal.2d 1, 73 P.2d 554); or that the law under which he had been convicted was unconstitutional (In re Bell, 19 Cal.2d 488, 122 P.2d 22).

The asserted grounds of claimed lack of jurisdiction in the instant case, however, do not appear to be of such nature as would warrant a departure from the traditional scope of inquiry or would permit the consideration of new and additional facts alleged by petitioner which do not appear in the trial court record. The situation here present is not one in which the asserted lack of jurisdiction is based upon a claim by petitioner that he was convicted of violating an unconstitutional law or was denied any fundamental constitutional right. See In re Bell, supra, 19 Cal.2d 488, 501-502, 122, P.2d 22. On the contrary, petitioner's claims are based entirely upon federal statutes (§§ 1151, 1152, 1153, 3242, Title 18, U.S.C.A.), the effect of which has been changed since petitioner committed his offenses, by legislation giving the courts of this state unquestioned jurisdiction over offenses committed in 'All Indian country within the State.' § 1162, Title 18, U.S.C.A., as amended Aug. 24, 1954.

Petitioner had the opportunity to raise the jurisdictional question here involved by presenting the alleged facts at his trials. He failed to do so and, upon the facts there alleged and proved, the trial court's implied determination that it had jurisdiction over the offenses was correct. To permit petitioner to now relitigate that issue would encourage defendants charged with crimes, the jurisdiction over which might depend upon complex factual determinations, to withhold the raising of those issues until after they had attempted to obtain a favorable result at a trial on the merits, and perhaps until such time as a conviction by the court claimed to have jurisdiction would be impossible by reason of the statute of limitations, or otherwise. See Ex Parte Wallace, 81 Okl.Cr. 176, 162 P.2d 205, infra. The sanction of such procedure would permit piecemeal litigation of factual issues which should be finally determined upon a single trial. Federal jurisdiction over offenses which are committed within the boundaries of this state and which are defined by state law is exceptional and, in trials in the courts of this state, such jurisdictional claims are ordinarily defensive matter. See people v. Collins, 105 Cal. 504, 509, 39 P. 16. Petitioner therefore should have alleged and proved in the trial court any facts which he now claims might have had the effect of vesting exclusive jurisdiction in the federal courts.

The foregoing conclusions are supported by both state and federal authority. In State ex rel. Du Fault v. Utecht, 220 Minn. 431, 19 N.W.2d 706, 161 A.L.R. 1316, and Ex parte Wallace, 81 Okl.Cr. 176, 162 P.2d 205, supra, the problem presented was almost identical with that involved here. Petitioners therein by collateral attack on habeas corpus attempted for the first time to contest the jurisdiction of the state courts of general jurisdiction which had convicted them. It was claimed that petitioners were 'Indians' and that the crimes of which they had been convicted had been committed in 'Indian country.' Relief was denied in both cases upon the ground that the determination of jurisdiction by trial court of general jurisdiction was not subject to collateral attack on habeas corpus where petitioners had not contested the jurisdiction of the court at the trial nor brought to the trial court's attention facts from which lack of jurisdiction could have been determined and where upon the face of the trial court record there was no showing of lack of jurisdiction. See, also, 39 C.J.S. Habeas Corpus § 16, p. 456; 25 Am.Jur., Habeas Corpus, § 26, p. 161. While in neither of the cited cases did petitioner attempt to raise the...

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