Hayes v. United States

• Decision Date: 19 October 1966
• Docket Number: No. 8834.,8834.
• Citation: 367 F.2d 216
• Parties: Hiller Arthur HAYES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

367 F.2d 216 (1966)

Hiller Arthur HAYES, Appellant, v. UNITED STATES of America, Appellee.

No. 8834.

United States Court of Appeals Tenth Circuit.

October 19, 1966.

Robert W. Feiring, Kansas City, Kan., for appellant.

Benjamin E. Franklin, Asst. U. S. Atty., Kansas City, Kan. (Newell A. George, U. S. Atty., Kansas City, Kan., with him on the brief), for appellee.

Before PICKETT and HILL, Circuit Judges, and PAYNE, District Judge.

PAYNE, District Judge.

This is an appeal by Hiller Arthur Hayes from a conviction of second degree murder by a jury verdict and a sentence of life imprisonment, consecutive to the present imprisonment of the appellant. The conviction and sentence took place in the United States District Court for the District of Kansas.

The appellant contends that the lower court erred in five points which are set forth by the appellant in his brief as follows:

"1. The Court erred in overruling the motion of defendant Hayes to dismiss the indictment for lack of jurisdiction and, during the trial, taking judicial notice of, and instructing the jury, that the situs of the alleged crime was under the exclusive jurisdiction of the United States.

2. The Court erred in overruling the defendant\'s motion to suppress evidence, and during the trial, the admission of such evidence over the objection of defendant Hayes.

3. The Court erred in admitting as evidence a copy of a letter written by the defendant Hayes which was intercepted by prison officials as an administrative function of the prison.

4. The Court erred in permitting an unlicensed medical school resident to testify as to the results of an illegal and unlawful autopsy performed by such resident.

5. The Court erred in restricting defendant\'s proof of the vicious character of the deceased to those specific instances known personally by the defendant."

On May 20, 1965, a prisoner in the Leavenworth Penitentiary was found in the basement of the laundry building. He had been stabbed several times and was immediately taken to the prison hospital where he was pronounced dead. The defendant Hayes was taken to the Warden's office, at which time his clothing was removed and he was examined by those present. A certain substance was scraped from the appellant's knees and from around his finger nails and from his shoes. The appellant was then given the usual clothes to be worn in segregation and was placed in solitary confinement.

For approximately one week before May 20, Aurelio Garcia Rombach had been in solitary confinement. At about ten a. m. on May 20, 1965, he was released and had been to the barber shop located in the laundry building at the penitentiary. There is a conflict as to the facts immediately surrounding the death of Rombach. The appellant Hayes admitted on the stand, however, that he stabbed him three times, the first time in the back, the second time in the left chest and the third time in the neck. The appellant claims that he acted in self-defense. There was other testimony that the decedent had been either stabbed or cut fourteen times.

The matter came on for trial on March 14, 1966, at Kansas City, Kansas, and the trial lasted through March 19, 1966, being 6 days of trial. The other matters of fact will be discussed in connection with the points raised as may be necessary.

Hayes was indicted with three other persons but a severance was granted as to two of the defendants, and the other defendant was tried with the defendant Hayes but was acquitted by the jury.

A motion to dismiss was filed on September 8, 1965, which raised a number of questions, all of which seem to have been abandoned except the challenge to the jurisdiction of the Court on the grounds that the Court was without jurisdiction of the subject matter of the offense, on the alleged proposition that the real property on which the prison is located is not under the sole and exclusive jurisdiction of the United States. This motion was overruled by the Court.

A motion to suppress every item taken from the defendant on May 20, 1965, and on other days thereafter, until August 26, 1965, was filed, on the grounds that said items were seized against the will of Hayes and without a search warrant. This motion was likewise denied. Other points were raised during the trial.

The Court will first discuss the question of jurisdiction raised by Point 1, above. There was no question but what the alleged incident took place in the laundry room of the penitentiary at Fort Leavenworth. The Court took judicial notice of the fact that the penitentiary was within the sole and exclusive jurisdiction of the Court.

The land upon which the penitentiary is situated was a part of the territory acquired by the United States from France in 1803, and as a result thereof the United States exercised jurisdiction over it until Kansas became a state. The original reservation was made by an Executive Order dated October 10, 1854, for military purposes. When Kansas was admitted as a state in 1860, the Federal Government did not reserve jurisdiction over Fort Leavenworth. On February 22, 1875, the Legislature of Kansas passed a statute entitled "An Act to Cede Jurisdiction to the United States over the Territory of Fort Leavenworth Military Reservation." This Act read as follows:

"Be it enacted by the Legislature of the State of Kansas:

Section 1. That exclusive jurisdiction be and the same is hereby ceded to the United States, and included within the limits of the United States Military reservation, in said state, as declared from time to time by the president of the United States, saving, however, to the said state the right to serve civil or criminal process within said reservation, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said state, but outside of said cession and reservation; and saving further, to said state, the right to tax railroad, bridge and other corporations, their franchises and property, on said reservation.

Section 2. This act shall take effect and be in force from and after its publication once in the Kansas Weekly Commonwealth."

On June 10, 1896, Congress enacted a law (29 Stat. 380), which established a site for the erection of the penitentiary at Fort Leavenworth.

In 1927, the Legislature of Kansas passed an act, which reads as follows:

"27-101. Consent given to the United States to acquire land. That the consent of the State of Kansas is hereby given in accordance with the provisions of paragraph number seventeen, section eight, article one of the constitution of the United States, to the acquisition by the United States by purchase, condemnation or otherwise, of any land in the state of Kansas, which has been, or may hereafter be, acquired for custom houses, courthouses, post offices, national cemeteries, arsenals, or other public buildings, or for other purpose of the government of the United States.

27-102. Jurisdiction. That exclusive jurisdiction over and within any lands so acquired by the United States shall be, and the same is hereby, ceded to the United States, for all purposes; saving, however, to the state of Kansas the right to serve therein any civil or criminal process issued under the authority of the state, in any action on account of rights acquired, obligations incurred or crimes committed in said state, but outside the boundaries of such land; and saving further to said state the right to tax the property and franchises of any railroad, bridge or other corporations within the boundaries of such lands; but the jurisdiction hereby ceded shall not continue after the United States shall cease to own said lands.

27-104. Fort Leavenworth reservation. Laws 1875, chapter 66, section 1, included by reference."

The thrust of the argument of the appellant seems to be that the land in question was not acquired in accordance with the provisions of paragraph seventeen, section eight, article one, of the Constitution of the United States. Apparently, appellant also contends that any cession of land by the State of Kansas, in 1875, was for military purposes only, and that the use of the land for a penitentiary exceeded the authority granted by the statute in 1875, and that by reason thereof the United States did not have jurisdiction over that portion of the land used for a federal penitentiary.

It seems that when the Constitution was framed the delegates to the convention felt that the only way the Government might acquire property in the states was by purchase. That idea has not prevailed and it is now generally conceded that the United States may acquire property in other ways. However, when the Government does acquire property by purchase the consent of the state must be secured before the United States has complete jurisdiction over the property. Otherwise, the Government would be in the same position as any other proprietor. A complete discussion of this proposition is found in Fort Leavenworth Railroad Company v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264. In this instance, the property was held and used by the United States for a military establishment before the state was created and the Government failed, for some reason, to reserve jurisdiction over the reservation. However, as previously stated, the State of Kansas ceded jurisdiction to the United States by an act of the Legislature in 1875. It is true that when this act was passed the entire property was held as a military reservation and such is recognized in the act of the Legislature. However, there is an implication in the act that the property might be used for railroads and by various corporations. There was no provision in the law stating that it could not be used for some other purpose.

On June 10, 1896, the Government passed the statue, heretofore mentioned, setting aside a certain portion of the property in question for the penitentiary and put the same under the jurisdiction of the Attorney General of the United States....