In re Wolf

• Citation: 27 F. 606
• Parties: In re WOLF and another.
• Decision Date: 01 January 1886
• Court: U.S. District Court — Western District of Arkansas

27 F. 606

In re WOLF and another.

United States District Court, W.D. Arkansas.

May Term, 1886

[Copyrighted Material Omitted]

William H. H. Clayton, for petitioners.

E. C Boudinot, for the United States.

PARKER J.

The question in this proceeding is, should these parties, Wolf and Ross, be removed to the District of Columbia for trial on either one of these indictments? If, under the law, they should, they are not entitled to be discharged on habeas corpus. If they should not be so removed, they are entitled to a discharge, either by habeas corpus or without it.

Under the law of the United States, (section 1014, Rev. St.,) 'where any offender is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender is imprisoned seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.'

This court held in the case of U.S. v. Rogers, 23 F. 658 that the judge, in acting on application for the removal of a party charged with crime, was performing a judicial function; and in the performance of such function he may look into the proceedings of the commissioner, or the court in which the indictment was found, for the purpose of enabling him to properly determine questions pertaining to the removal, and grant or refuse the order accordingly. Under the section of the statute above referred to the judge is invested with plenary power to grant or refuse the warrant of removal, and he is but exercising sound judicial discretion when he looks into the question of jurisdiction, or into the whole case, so far as to enable him to determine where the trial is to be had. If the indictment contains allegations sufficient to show a crime has been committed by the party charged, it is the practice of the federal judges to take the same as a prima facie showing that a crime has been committed at the place alleged by the party charged; and, if nothing else appears, to order a removal of the party charged. But I have no doubt the judge, in his sound discretion, may go into the whole case, if necessary, to enable him to determine whether the party is to be removed from his home to a distant part of the country. This is a law in restraint of liberty, and, like all laws of this character, while the very substance of the law is not to be construed away, yet it is to be strictly construed, and strictly pursued. The government asking a removal is required to fully comply with the law.

The question, then, which presents itself to the judge is, where the case is to be tried, where a trial can be had. Before a trial can be had before any court of the United States, such court must have jurisdiction over the place, the person, and the subject-matter. If there is an absence of subject-matter, the trial cannot be had. There may be an absence of subject-matter, either because there is no law declaring the act charged a crime; or because, as charged, the act is not a crime; or because the facts fail to show that the party sought to be removed committed the act charged. I shall confine myself to the indictment charging a conspiracy, because if this shows a crime committed by persons over which, and at a place where, the supreme court of the District of Columbia has jurisdiction, it would be my duty to order a removal of the petitioners to the court for trial.

The indictment in this case alleges this crime was committed in the District of Columbia. There is no question of the jurisdiction of the court in which the indictment was found extending over the place where the crime is alleged to have been committed.

Then, the next question is, does the supreme court of the District of Columbia have jurisdiction over the persons of petitioners? The petitioners, Wolf and Ross, are shown to be Indians by blood, members of the Cherokee Nation or tribe of Indians because of their having the blood of the race. They reside in and are a part of the Cherokee Nation or tribe of Indians. This crime is one alleged to have been committed against the Cherokee Nation of Indians, which in law is an Indian tribe. This, then, is a case of a crime committed by one Indian against another Indian. It is claimed, this being true, the case is not within the jurisdiction of the supreme court of the District of Columbia; that said court has no jurisdiction over the persons of defendants. Section 2145, Rev. St., provides that, 'except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. ' Section 2146, among other things, provides that the preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian. * * * '

The prohibition by the section of the law of the jurisdiction of a court of the United States over a crime committed by one Indian upon another is one which is personal to the Indian, only when the crime is committed in a certain section of the country, to-wit, the Indian country. It is a prohibition which is clearly local. When a crime is committed by an Indian, although such crime may be against the person or property of another Indian, if committed outside the Indian country, the Indian is like any other person as far as the criminal laws of the nation or the states are concerned. In a case where he has committed a crime against such laws, he is by them a forensic citizen, subject to the jurisdiction of the courts which administer them. Our laws govern all. They bind and protect all. They bind and protect alike all persons,-- natives, foreigners, and those whose status to the United States may be one of alienage. They are all alike subject to the criminal laws of the country, and when they commit a crime against the laws of the nation, at a place over which the courts of the nation have jurisdiction, they are subject to trial in such courts. Mr. Kent, in 1 Kent, Comm. 36, says: 'Strangers are equally bound with natives to obedience to the laws of the country during the time they sojourn in it, and they are equally amenable for infractions of the law.'

To the above rule there are some exceptions: First, the case of a foreign sovereign and his attendants, second, foreign embassadors, and their attendants. By the law of nations they are not subject to the laws of a country they may visit, or in which they may have a temporary domicile. Sections 124-134, Bish. Crim. Law.

The other exception is one recognized as existing under the laws of the United States. It is that of an Indian committing a crime upon another Indian, in the Indian country. When an Indian is outside of that country he is entitled to the full measure of protection afforded by the laws of the nation, and if he commits a crime outside of the Indian country, whether upon one of his own race or another, he is amenable to the law of the place where the crime is committed. This proposition, to my mind, is established when stated.

This, then, disposes of the proposition as to the jurisdiction of the court in which the indictment was found over the persons of petitioners.

The next question is, did said court have jurisdiction over the subject-matter? This involves the query as to whether there is any subject-matter; that is, whether the act charged to have been done by them is made a crime by the laws of the United States; then, whether such crime is properly charged. The crime charged to have been committed by the petitioners is conspiracy to commit a crime against the United States, which, by section 5440, Rev. St., is defined to be a crime. By the common law a conspiracy is an agreement between two or more persons to do some unlawful act, or to do a lawful act in an unlawful manner. The agreement itself constitutes the offense, whether an act is done in furtherance of the object or not.

Section 5440, Rev. St., is as follows;

'If two or more persons conspire, either to commit any offense against the United States, or to defraud the United States in any manner, or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty. * * * '

It is manifest that to constitute a criminal offense under this section the object of the conspiracy must be to commit some offense against the United States; that is, to do some act made a crime by the laws of the United States, or to defraud the United States; and that something must be done by one or more of the conspirators to effect the object of the conspiracy. The definition of this offense would be 'an agreement between two or more persons to do some act which by the laws of the United States, is a crime, and the doing of some act, by one or more of those who had so agreed, in furtherance of or to effect the object of the agreement. ' To constitute a good indictment under this section, it must charge that the conspiracy was to do some act made a crime by the laws of the United States, and it must state with such reasonable certainty the acts intended to be effected or carried out by the agreement of the parties so that it can be seen the object of the conspiracy was a crime against the United States. The conspiracy or agreement, and the doing of some act in furtherance of it,...