Ex parte Wallace

• Decision Date: 19 September 1945
• Docket Number: A-10656.
• Citation: 162 P.2d 205,81 Okla.Crim. 176
• Parties: Ex parte WALLACE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

162 P.2d 205

81 Okla.Crim. 176

Ex parte WALLACE.

No. A-10656.

Court of Criminal Appeals of Oklahoma

September 19, 1945

Original proceeding in habeas corpus by George Wallace, petitioner, to secure his release from confinement in the State Penitentiary.

Writ denied.

Syllabus by the Court.

1. Decision of United States Supreme Court on question whether conviction of Indian in state court for committing certain crime on restricted Indian allotment violated Federal Constitution held conclusive on state courts.

2. 'Indian country,' within statute extending to Indian country general criminal laws of United States, is country to which Indians retained right of use and occupancy, involving under certain restrictions freedom of action and of enjoyment in their capacity as a distinct people, and which ceases to be such when title of Indians is extinguished, unless by virtue of some reservation expressed at time and clearly appearing.

3. Land which was formerly a part of Indian reservation established by United States in part of Oklahoma which was formerly Oklahoma Territory which is in possession of Indian under restricted allotment without power of alienation is 'Indian country' within statute extending general federal criminal laws to Indian country.

4. The writ of habeas corpus will not issue unless the judgment and sentence attacked is void on its face.

5. The writ of habeas corpus did not originate, nor was it designed to embarrass or interfere with the courts in the due administration of justice in cases where such courts have the general jurisdiction of the subject matter and of the person of the defendant.

6. Where Indian pleads guilty to information charging rape in first degree and no jurisdictional question is raised until after more than three years have elapsed so as to bar prosecution in either state or federal court, the jurisdiction of the state court can not be callenged in collateral proceeding in habeas corpus on ground that land on which offense was committed was restricted Indian allotment and that the person assaulted was a restricted Indian.

7. Where information charges crime of rape was committed in Cotton County, the jurisdiction of the court is an issue in the trial court; the plea of guilty by accused who appears with counsel and the finding of guilt and sentence of accused upon his plea of guilty is conclusive finding of jurisdiction and such finding may not be attacked in a collateral proceeding. An exception to this rule is where the petitioner asserts that his conviction was obtained by a denial to him of due process of law.

William T. Powell, of Walters, for petitioner.

Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen for respondent.

JONES Judge.

This is an original proceeding in habeas corpus filed by the petitioner, George Wallace, to secure his release from confinement in the State Penitentiary.

The verified petition alleges that on February 3, 1942, there was filed in the Justice of the Peace court in the city of Walters, in Cotton County, Oklahoma, a complaint charging the petitioner with the crime of rape upon one Dixie Lee Hovah age six years; that thereafter, a warrant was issued and defendant was incarcerated in the county jail of Cotton County; that defendant waived a preliminary examination and his case was certified to the District Court of Cotton County. Later, an information was filed against the defendant in the District Court of Cotton County charging the crime of rape in the first degree, substantially as alleged in the criminal complaint. That on May 8, 1942, the defendant appeared with his counsel before the District Court of Cotton County, entered his plea of guilty to said charge contained in the information, and was by the Court sentenced to serve a term of 25 years' imprisonment in the State Penitentiary.

That on the date the petitioner was sentenced by the District Court of Cotton County, a stipulation signed by counsel for defendant and the County Attorney of Cotton County was filed, which stipulation recited that the alleged act constituting the crime of rape for which said defendant was charged was committed on the Southwest Quarter of Section Eight (8), Township Two (2) South, Range Nine (9) West, Cotton County Oklahoma, and that said quarter section of land is, and was, restricted Indian land, the title to which is held in trust by the United States of America for a member of the Comanche tribe of Indians.

The petition further alleges that the restraint and imprisonment under the judgment and sentence of aforesaid is allegal for the following reason:

That the petitioner is a full-blood, enrolled, and restricted Comanche Indian, and that the said Dixie Lee Hovah is, also, an enrolled and restricted Comanche Indian, and that the restrictions have never been removed from either the petitioner or the said Dixie Lee Hovah, and, for that reason, since the acts which are alleged to have constituted the commission of the crime of rape were performed on restricted Indian land, that the District Court of Cotton County was without jurisdiction of the offense charged, that the judgment and sentence was void, as sole and exclusive jurisdiction of said offense was vested in the United States District Court for the Western District of Oklahoma.

Attached to the petition are copies of the complaint, the minutes of the Justice of the Peace, before whom the defendant was brought for a preliminary examination, a copy of the information, the stipulation of counsel, and the judgment and sentence pronounced against defendant upon his plea of guilty.

It is interesting to note at this juncture that the petition for writ of habeas corpus filed in the instant case was not filed until after the lapse of three years, so that any further action against the petitioner, in case he secured his release from confinement in the State Penitentiary in the instant action, would be barred in either the State or the Federal courts by reason of the three years period of limitation on commencement of a criminal action of this nature. 22 O.S.1941 § 152.

A rule to show cause was issued and the Warden of the State Penitentiary has filed a response to the petition, in which response he admits that he is holding the petitioner in custody in said penitentiary pursuant to the judgment and sentence of the District Court of Cotton County rendered on May 8, 1942, by which judgment and sentence the said George Wallace was committed to the State Penitentiary to serve a term of twenty-five years.

The respondent further alleges that the judgment and sentence was regularly and duly pronounced upon defendant's plea of guilty in the presence and with the advice of counsel. That defendant George Wallace had been duly and properly charged by information for the crime of rape committed in said Cotton County. That there was nothing in said information nor in the stipulation filed by counsel to show that either George Wallace or Dixie Lee Hovah were Indians and that on the face of the record the court had jurisdiction of the offense and of the person of the defendant and jurisdiction to pronounce said sentence and the only way the matter now argued by counsel could be presented was by an objection to the jurisdiction of the trial court and by appeal to this court in case of an adverse ruling. That no objection to the jurisdiction of the trial court was ever interposed by defendant or his counsel and the stipulation filed by counsel was not even called to the attention of the trial court, although there was nothing in said stipulation to show that either the petitioner or the complainant was an Indian.

Upon a hearing had before this court, it was stipulated by counsel that subject to the objection of the Attorney General as to the competency and relevancy of said evidence that the petitioner and the victim of the crime were restricted Comanche Indians.

The minutes of the Justice of the Peace, before whom the complaint was filed, recite:

'Whereupon, this the 3d day of February, 1942, C. C. Campbell filed herein complaint, charging the above named defendant, George Wallace, with the crime of rape, and a warrant thereafter was issued and placed in the hands of the Sheriff of Cotton County, Oklahoma.

'Thereafter, on the 4th day of February, 1942, an amended complaint was filed in the cause, but the arrangement was delayed until the defendant would have time to make arrangements with some attorney to represent him, and thereafter, on February 9, 1942, the District Attorney's office of Oklahoma City demanded that the defendant be turned over to the Federal government for prosecution and his request was complied with. Thereafter, on March 12th, the Federal Attorney. Charles Becker, notified the County Attorney of Cotton County, that the Federal government had made a thorough investigation of the alleged crime and desired to return the defendant back to the State and to Cotton County for prosecution by reason of the want of Federal jurisdiction, thereafter, on the 12th day of March, 1942, the defendant was returned to the County jail of Cotton County, and thereafter, on March 17th, 1942, defendant appeared before the undersigned magistrate in person and with his Attorney and legal advisor, Wm. T. Powell, and after the complaint was read to the defendant and after he was fully advised of the nature of the indictment lodged against him, he entered a plea of not guilty, waived preliminary hearing and asked that his case be certified up to the District Court of Cotton County.'

It is contended by petitioner that exclusive jurisdiction of the crime of rape committed by an Indian on another Indian or other person on an Indian Reservation is exclusive vested in the courts of...