Henry v. United States
Decision Date | 18 January 1971 |
Docket Number | No. 24987.,24987. |
Citation | 432 F.2d 114 |
Parties | Thomas HENRY, Jr., Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
John R. McDonough (argued), Los Angeles, Cal., for appellant.
Roger A. Pauley (argued), Atty., Dept. of Justice, Washington, D. C., Bart M. Schouweiller, U. S. Atty., Reno, Nev., Robert S. Linnell, Las Vegas, Nev., for appellee.
Before CHAMBERS and CARTER, Circuit Judges, and BYRNE,* District Judge.
Certiorari Denied January 18, 1971. See 91 S.Ct. 576.
Appellant was convicted on both counts of an indictment charging him and three companions, all Indians, with raping two twenty-year old non-Indian girls, within the confines of the Pyramid Lake Indian Reservation in Nevada in violation of 18 U.S.C. §§ 1152 and 2031. Appellant was sentenced to concurrent seven-year terms of imprisonment.
Section 1152 provides:
Section 2031 provides:
"Whoever, within the special maritime and territorial jurisdiction of the United States, commits rape shall suffer death, or imprisonment for any term of years or for life."
Henry contends that the indictment is defective because it charges violations of §§ 1152 and 2031, whereas the charges should be violations of § 1153 of Title 18, United States Code.
Section 1153 provides (in relevant part):
The appellant argues that the language of this statute, also known as the Major Crimes Act, is plain and clear on its face and should have been used in the indictment.
The government contends that despite the "or other person" language of § 1153, legislative history demonstrates that the section was intended to apply only to crimes committed by an Indian against another Indian.
According to the government, § 1153 was adopted against a backdrop of Congressional outrage over the effects of Ex Parte Crow Dog, 109 U.S. 556, 3 S. Ct. 396, 27 L.Ed. 1030 (1883) ousting federal territorial courts of jurisdiction over crimes committed by one Indian against another. In Crow Dog the court sustained the validity of a statute which excluded federal jurisdiction over.
"* * * crimes committed by one Indian against the person or property of another Indian (and to) any Indian committing any offense in the Indian country who has been punished by the local law of the tribe * * *." (emphasis supplied).
The statute construed by the Crow Dog court was § 2146 of the Revised Statutes first enacted in the Indian Intercourse Act of 1834. The statute by excluding from federal jurisdiction "any Indian committing any offense in the Indian country who has been punished by the local laws of the tribe" not only excluded from federal court jurisdiction cases involving Indian offenders and Indian victims, but also excluded cases involving Indian offenders and non-Indian victims when the offense was covered by local laws of the tribe.
The inclusion in § 2146 of "any offense," which obviously includes non-Indian victims, demonstrates the reason why Congress included the words "or any other person" in § 1153. Contrary to the government's contention, the "other person" language cannot be disregarded as not being a Congressional remedy for the lacunae created by the Crow Dog decision. Just as Congress found it desirable to find a remedy for the ousting of federal jurisdiction over crimes committed by one Indian against another, it applied the same remedy for the ousting of federal jurisdiction over crimes committed by an Indian against "any other person."
In Gon-shay-ee, Petitioner, 130 U.S. 343, 9 S.Ct. 542, 32 L.Ed. 973 (1889), Gon-shay-ee, an Apache Indian, killed a non-Indian on an Indian Reservation in Arizona. He was convicted under the authority of § 1153 ( ). See also, Apapas v. United States, 233 U.S. 587, 34 S.Ct. 704, 58 L.Ed. 1104 (1913); United States v. Thomas, 7 Cir., 47 F. 488 (1891); Gray v. United States, 394 F.2d 96 (CA 9 1968).
Though the indictment was defective in that it should have been brought under § 1153, has the appellant suffered any prejudice?
The cases cited by Henry in support of his claim that "it has long been settled that a defendant cannot be indicted for an offense that he did not commit even though the proof may show that he violated a different statute," are inapposite.
In Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948) a trial judge instructed the jury that certain defendants were on trial for the offense of promoting an unlawful assembly (Section 2 of a state statute). In the State Supreme Court the defendants raised a number of constitutional objections to their convictions for violating the unlawful assembly provision. Without passing on their constitutional objections, the Arkansas Supreme Court held that the information filed against the defendants also made out a charge of using force or violence against another person in violation of Section one of the same statute.
Significantly, the court in Cole stated that if in fact the defendants were charged with violating section one, "it (was) doubtful both that the information fairly informed them of that charge and that they sought to defend themselves against such a charge; it is certain that they were not tried for or found guilty of it."
In contrast to Cole, our case presents an appellant (a) indicted under charges which are essentially the elements necessary for conviction under § 11531 (b) which were clearly specified in the indictment (albeit with erroneous reference to § 1152), (c) against which he mounted a defense in the trial court, and (d) which were contained in instructions to the jury.
Although the indictment made erroneous reference to § 1152, appellant Henry was not prejudiced and we conclude that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The second issue raised by the appellant is stated as follows:
The appellant argues,
The appellant is in error as to the applicable law. If, as hypothesized by appellant, one of the four defendants had happened to be a non-Indian, — both the victims and the offender would be non-Indians, and the crime of rape would not have been determined by reference to §§ 1152 and 2031 as contended by the appellant, but by the law of Nevada. See United States v. McBratney, 104 U.S. 621, 26 L.Ed. 861 (1881); New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S. Ct. 307, 90 L.Ed. 261.
Assuming the offender were a non-Indian and the victim an Indian (which of course is not our case), the crime would be in federal...
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