Davis v. United States

• Citation: 32 F.2d 860
• Decision Date: 13 May 1929
• Docket Number: No. 5629.,5629.
• Parties: DAVIS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

32 F.2d 860 (1929)

DAVIS v. UNITED STATES.

No. 5629.

Circuit Court of Appeals, Ninth Circuit.

May 13, 1929.

Collier, Collier & Bernard and J. N. Helgerson, all of Portland, Ore., for appellant.

George Neuner, U. S. Atty., and Forrest E. Littlefield and J. W. McCulloch, Asst. U. S. Attys., all of Portland, Or.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

The appellant was convicted of murder in the first degree upon an indictment that charged that he, an Indian within the confines of the Klamath Indian Reservation, the same being Indian country, did on January 2, 1928, with malice aforethought, kill Lawrence Walker, an Indian. The record showed that the appellant was regularly enrolled as a Klamath Indian, and had been allotted lands within the Klamath Indian Reservation, which the government held in trust for him, and that Walker was a full-blooded Indian, but was not a member of the Klamath Tribes, and that the crime was committed at the home of Walker's mother, on lands held by her under restricted patent from the government.

The appellant assigns error to the trial court's refusal to direct that the trial of the case be held at Medford, that being alleged to be the most convenient and accessible place to the county in which the crime was committed. There was no provision for a term of a federal court in the county in which the offense was alleged to have been committed, and, while section 101, 28 USCA, provides that a capital offense shall be tried in the county where committed, where that can be done without great inconvenience, the denial of a trial in such county is not held to be ground for reversal, unless it is accompanied by abuse of discretion on the part of the trial court, and there is no suggestion here of abuse of discretion. Greenhill v. United States (C. C. A.) 6 F.(2d) 134; Brown v. United States (C. C. A.) 257 F. 46.

The appellant challenges the jurisdiction of the trial court, and points to the evidence that the appellant is not a tribal Indian, that the Klamath Indians have not maintained tribal relations for many years, but have lived and commingled with the white race, and have no chief, and by the Act of Congress of June 2, 1924, 43 Stat. 253, have been made full citizens of the United States, and that Walker was not a Klamath Indian, and was not known and enrolled as a member of any tribe. Section 548, 18 USCA, provides that all Indians committing certain crimes, including murder, against the person of another Indian, within the boundaries of any state of the United States, and within the limits of any Indian reservation, "shall be subject to the same laws, tried in the same courts, and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States." There was no error in overruling appellant's objection to the jurisdiction. United States v. Celestine, 215 U. S. 278, 284, 30 S. Ct. 93, 54 L. Ed. 195; United States v. Pelican, 232 U. S. 442, 34 S. Ct. 396, 58 L. Ed. 676; Apapas v. United States, 233 U. S. 587, 590, 34 S. Ct. 704, 58 L. Ed. 1104; United States v. Ramsey, 271 U. S. 467, 46 S. Ct. 559, 70 L. Ed. 1039.

The assignment of error principally relied upon is that the court admitted in evidence the appellant's confession. The appellant had stated to several persons that he had killed Walker in self-defense and he had been taken under arrest. Preliminary to the admission of the confession, a special agent for the United States Department of Justice testified to a conversation with the appellant, on January 2, 1928, in which he told the appellant who he was, exhibiting his badge, and asked the appellant for his story; that the appellant told him of calling to see Walker at the Anna Lynch place; that he and Walker had a short talk, and went to the barn and drank some liquor, and later had a short talk concerning a fight they had had the previous day; that Walker then drew a knife, and the appellant picked up an ax and hit Walker over the head, and after he knocked him down he hit him again, and then he dragged the body into the house and laid it on the bed. At about 3 o'clock on the morning of January 3, 1928, the witness took the appellant from the jail to the morgue, where the body of the deceased lay, and talked to him and told him what had been found, but that the appellant still stuck to his story. "We then," said the witness, "brought him up before the body which lay on the table, being drained, and we showed it to him, and made him examine the body and see the wounds on the head." The evidence was that, after they had been at the morgue three-quarters of an hour, the witness asked the appellant if it were not true that he had crawled in through the window and killed Walker while he was in bed, and the appellant said that it was true. The witness testified that he then took the appellant "out of that room," and took him to the sheriff's office, and said, "I want you to give me a complete confession on the whole thing," whereupon the appellant made a detailed statement. The witness testified that he made no promises to the appellant, and used no threats of any kind, and no force or violence.

The appellant cites Ziang Sung Wan v. United States, 266 U. S. 1, 45 S. Ct. 1, 69 L. Ed. 131. In that case a confession was obtained from the accused, who had been subjected to persistent, lengthy, and repeated interrogations at a time while he was ill, and continuously for 10 hours had been led from floor to floor to examine minutely and reexamine the scene of the alleged murder, the revolver which had been used, the blood stains and finger prints thereon, the clothes of the murdered men, the blood stains on the floor, and many other objects connected with the homicide, concerning which the accused was plied with questions by the superintendent of police and detectives. On the twelfth day of this continued torture, while weak and exhausted, he signed the confession. The Supreme Court, while holding a confession obtained by methods so shocking as those recounted in that case inadmissible against the accused, said:

"In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded, whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise." As to the facts in the case the court observed: "The undisputed facts showed that compulsion was applied."

We may take it that light upon the scope and meaning of that decision is found in the cases which were cited in the opinion. Bram v. United States, 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 568, was a case in which the confession of the accused had been held inadmissible, for the reason that it was obtained by a trick and by a false statement made by the chief of police to the accused, while he was in custody, as to what had been said by another accused person, who had also been taken into custody, whereby improper influence had been exerted upon the accused. In Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262, the court recognized the value of a confession freely and voluntarily made, and held it to be evidence of the most satisfactory character, and quoted Eyre, C. B., 1 Leach, 263, who said: "Such a confession * * * `is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt.' And the court directed attention to the presumption upon which weight is given to such evidence, namely that one who is innocent will not impair his safety or prejudice his interests by an untrue statement. A presumption, which the court said, "ceases when the confession appears to have been made either...