Gon-Shay-Ee

Citation32 L. Ed. 973,130 U.S. 343,9 S. Ct. 542
Decision Date15 April 1889
Docket Number7
Parties<P><B><CENTER> <I>Ex parte</I> GON-SHAY-EE.</CENTER></B></P>
CourtCourt of Appeals of Texas
130 U.S. 343

9 S.Ct. 542

32 L.Ed. 973

Ex parte GON-SHAY-EE.

April 15, 1889.

S. F. Phillips, W. H. Lamarand and J. G. Zachry, for petitioner.

Sol. Gen. Jenks, for respondent.

MILLER, J.

This is a petition for a writ of habeas corpus to be directed to the marshal of the United States for the territory of Arizona, who, it is alleged, holds the petitioner under a judgment of the district court of the United States for the Second judicial district of that territory, which condemned him to death for the crime of murder. This crime is alleged in the indictment to have been committed by the defendant, an Apache Indian, within said district, naming no county or other location. The allegation of the petitioner is that the court which tried him had not at that time, and in the mode of trial which was pursued, any jurisdiction of the case against him. It is argued by counsel, and alleged in the petition, that the district courts of the United States in the territory of Arizona, as in all other territories, have two distinct jurisdictions; that in the one they sit to exercise the powers and to try the same class of cases that the circuit courts of the United States do within the states, and in the same manner, while in the other they sit as courts having jurisdiction of the ordinary contests between private parties and of criminal offenses arising under the territorial laws. The controversy in this case seems to turn upon the question whether the offense for which Gon-shay-ee was tried was an offense against the laws of the United States, and was of that character which ought to have been tried by the court sitting to try such cases, or whether it was an offense against the laws of the territory, and should have been tried under those laws and by the court sitting to administer justice under them. The petitioner alleges that the offense with which he was charged was of the latter class, but that he was tried by the court while it was exercising its functions under the former.

The record of the case commences with the following statement of the finding of the indictment: 'In the District Court of the Second Judicial District, County of Maricopa, Territory of Arizona. May term, A. D. 1888, sitting for the trial of all cases arising under the constitution and laws of the United States, and having and exercising the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States, at a term thereof held at the city of Phoenix, in the county of Maricopa, in said district and territory, on the 29th day of May, A. D. one thousand eight hundred and eighty-eight. The United States of America vs. Gon-shay-ee. Indictment. Second Judicial District, Territory of Arizona. The grand jurors of the United States of America, within and for the Second judicial district, territory of Arizona being duly impaneled, sworn, and charged to inquire within and for the body of said district of all offenses committed therein against the United States of America, upon their oath present: That Gon-shay-ee, an Apache Indian, late of the Second judicial district, territory of Arizona, with force and arms, in said district and territory, on or about the 5th day of June, A. D. one thousand eight hundred and eighty-eight, and before the finding of this indictment, did then and there feloniously, willfully, deliberately, premeditately, and with malice aforethought, make an assault on a human being, to-wit, William Deal, in the peace of the United States then and there being, and with a certain gun, which then and there was loaded with gunpowder and a leaden bullet, and by him, the said Gon-shay-ee, had and held in his hands, he, the said Gon-shay-ee, did then and there feloniously, willfully, deliberately, premeditately, and with malice aforethought, shoot off and discharge at, to, against, and upon the said William Deal, thereby and by thus striking the said William Deal with the said leaden bullet, inflicting on and in the body of him, the said William Deal, one mortal wound, of which mortal wound the said William Deal then and there instantly died. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Gon-shay-ee, an Apache Indian, in the manner and form aforesaid, and at the time and place aforesaid, did him, the said William Deal, feloniously, willfully, deliberately, premeditately, and with malice aforethought kill and murder, against the peace of the United States, and their dignity, and contrary to the form of the statute in such case made and provided. O. T. ROUSE, United States Attorney.'

The record of the final judgment of the court is in the following language 'United States of America—District Court Second Judicial District of Arizona. Having and exercising the same jurisdiction under the constitution and laws of the United States as is vested in the district and circuit courts of the United States. Regular May term, A. D. 1883. June 14, A. D. 1888. Present: Hon. Wm. M. Porter, District Judge. United States of America, Plaintiff, vs. Gon-shay-ee, Defendant. Convicted of murder. The defendant, being present in open court in person, and by his counsel, H. N. Alesander and by his counsel, H. N. Alexander O. T. Rouse and Joseph Campbell, present on the part of the United States; and this being the time heretofore fixed for passing judgment on the defendant in this case,—the defendant, Gon-shay-ee, was duly informed by the court of the nature of the indictment found against him for the crime of murder committed on or about the 5th day of June, A. D. 1887; of his arraignment and plea of 'not guilty as charged in the indictment;' of the trial, and the verdict of the jury on the 4th day of June, A. D. 1888, guilty of murder as charged in the indictment. The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him; and, no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment that whereas, you, Gon-shay-ee, having been duly convicted in this court of the crime of murder, it is found by the court that you are so guilty of said crime. It is considered and adjudged, and the judgment of the court is, that you, Gon-shay-ee, be removed hence to the county jail of Maricopa county, or some other place of secure confinement, and there be securely kept until Friday, the 10th day of August, A. D. 1888, and on that day you be taken by the United States marshal of the territory of Arizona, to and within the yard of the jail of said Maricopa county Arizona, and between the hours of nine o'clock A. M. and five o'clock P. M. of that day, by said marshal, you be hanged by the neck till you are dead.'

It is very clear from these transcripts of the proceedings in the court below that on this trial it proceeded and considered itself as acting as a court for the trial of offenses arising under the constitution and laws of the United States, and as administering them with the same powers as those vested in the circuit and district courts of the United States generally. The grand jurors are described as 'the grand jurors of the United States of America within and for the Second judicial district, territory of Arizona, being duly impaneled, sworn, and charged to inquire within and for the body of said district of all offenses committed therein against the United States.' The court was held in the city of Phoenix, in the county of Maricopa, and the offense is described as having been committed within the Second judicial district of the territory, without any further reference to the county in which the act was done. In the final judgment of condemnation it is declared to be rendered in the 'district court, Second judicial district of Arizona, having and exercising the same jurisdiction under the constitution and laws of the United States as is vested in the district and circuit courts of the United States.' Both the grand and the petit jurors were summoned by the marshal of the United States, and the execution of the sentence was imposed upon that officer, who now holds the prisoner in custody under it.

If the court which tried the prisoner had been sitting for the trial of offenses committed against the territorial law, all this would have been different. The grand...

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    ...crimes against non-Indians on Indian lands is also based upon the language of 18 U.S.C. § 1153. Gon-shay-ee, Petitioner, 130 U.S. 343, 9 S.Ct. 542, 32 L.Ed. 973 (1889), and Henry v. United States, 432 F.2d 114 (9th Cir. 1970), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971)......
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