Lucas v. United States

• Decision Date: 04 October 1926
• Docket Number: No. 7362.,7362.
• Citation: 15 F.2d 32
• Parties: LUCAS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 32 (1926)

LUCAS v. UNITED STATES.

No. 7362.

Circuit Court of Appeals, Eighth Circuit.

October 4, 1926.

John T. Harley, of Tulsa, Okl., for plaintiff in error.

W. L. Coffey, Asst. U. S. Atty., of Tulsa, Okl. (John M. Goldesberry, U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

BOOTH, Circuit Judge.

By an indictment returned in the Northern district of Oklahoma, plaintiff in error and M. M. Wells were charged with having unlawfully in their possession intoxicating liquor, to wit, whisky, "in an Indian country, to wit, Okfuskee county, state of Oklahoma, where the said liquor was had, possessed, and kept by the said defendants, having been within the limits of the Indian Territory, and a part thereof prior to the admission of the state of Oklahoma into the Union as one of the United States of America, and being then and there a place where the introduction of spirituous and intoxicating liquor is and was prohibited by the federal statutes, and which said possession of said liquor was contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America." Wells pleaded guilty. Lucas was tried and found guilty. He sued out this writ of error.

The assignments of error bring to the attention of the court two matters: (1) An alleged error of the trial court in denying a motion for a directed verdict at the close of the government's case; (2) the constitutionality of the Act of Congress of June 30, 1919 (41 Stat. 4).

As to the first, it is sufficient to say that testimony was introduced by the defendant after the denial of the motion for a directed verdict at the close of the government's case. The alleged error was thereby waived. Youngblood v. United States, 266 F. 795 (C. C. A. 8); Marron v. United States (C. C. A.) 8 F.(2d) 251, 258. The motion was not renewed at the close of all the evidence, and the facts and circumstances of the case are not of such character as to impel us to review the evidence in the absence of a proper assignment of error.

Turning to the second matter; the Act of June 30, 1919, under which the indictment was drawn, reads as follows:

"For the suppression of the traffic in intoxicating liquors among Indians, $100,000: Provided, that on and after July 1, 1919, possession by a person of intoxicating liquors in the Indian country or where the introduction is or was prohibited by treaty or federal statute shall be an offense and punished in accordance with the provisions of the Acts of July 23, 1892 (Twenty-Seventh Statutes at Large, page 260), and January 30, 1897 (Twenty-Ninth Statutes at Large, page 506): Provided further, that the provisions of article IX of the agreement with the Nez Perce Indians of Idaho, dated May 1, 1893, and ratified and confirmed by the Act of Congress approved August 15, 1894 (Twenty-Eighth Statutes at Large, pages 286-330), prohibiting the sale of intoxicating liquors to those Indians or its introduction upon their lands, are hereby extended for the period of ten years."

The statute prohibits possession of intoxicating liquor in two classes of places: (1) Indian country; (2) places where the introduction of such liquor was or is prohibited by treaty or federal statute. It is not claimed by the government that the place of possession in the instant case (Okfuskee county, Okl.) was at the time of the offense within the first class, but it is claimed that it was within the second class.

It is conceded that Okfuskee county was a part of the Indian Territory prior to the admission of Oklahoma as a state. The Act of March 1, 1895 (28 Stat. c. 145, p. 693), prohibited the introduction of intoxicating liquor into Indian Territory. Section 8 of the act read as follows:

"That any person, whether an Indian or otherwise, who shall, in said territory, manufacture, sell, give away, or in any manner, or by any means furnish to anyone either for himself or another, any vinous, malt, or fermented liquors, or any other intoxicating drinks of any kind whatsoever, whether medicated or not, or who shall carry, or in any manner have carried, into said territory any such liquors or drinks, or who shall be interested in such manufacture, sale, giving away, furnishing to anyone, or carrying into said territory any of such liquors or drinks, shall, upon conviction thereof, be punished by fine not exceeding five hundred dollars and by imprisonment for not less than one month nor more than five years."

After the admission of Oklahoma as a state, the Act of March 1, 1895, remained in force, at least in part. Ex parte Webb, 225 U. S. 663, 32 S. Ct. 769, 56 L. Ed. 1248. The court in its opinion in that case said (page 682, 32 S. Ct. 776 56 L. Ed. 1248):

"* * * It seems to us that Congress, so far from intending by the Enabling Act to repeal so much of the act of 1895 as prohibits the carrying of intoxicating liquors into the Indian Territory from points without the state, framed the Enabling Act with a clear view of the distinction between the powers appropriate to be exercised by the new state over matters within her borders, and the powers appropriate to be exercised by the United States over traffic originating beyond the borders of the new state and extending within the Indian Territory."

The court further said (page 691, 32 S. Ct. 779 56 L. Ed. 1248):

"The power of Congress to regulate commerce between the states, and with Indian tribes situate within the limits of a state, justifies Congress when creating a new state out of territory inhabited by Indian tribes, and into which territory the introduction of intoxicating liquors is by existing laws and treaties prohibited, in so legislating as to preserve those laws and treaties in force to the extent of excluding interstate traffic in intoxicating liquors that would be inconsistent with the prohibition."

From the foregoing it is clear that the offense in the instant case was committed in a place where the introduction of intoxicating liquor was prohibited by federal statute, to wit, by section 8 of the Act of March 1, 1895 (28 Stat. 693). It follows that the offense was within the Act of June 30, 1919.

The only remaining question is whether the last-mentioned act is constitutional. The act is entitled "An act making appropriations for the current and contingent expenses of the Bureau of Indian Affairs, for fulfilling treaty stipulations with various Indian tribes, and for other purposes, for the fiscal year ending June 30, 1920." It contains many provisions. The provision here in question (quoted above, inclosed in brackets) is found in section 1 under the subheading, "Suppressing Liquor Traffic."

It is conceded by plaintiff in error that the place of the offense, Okfuskee county, was formerly Indian country. It is well settled, and this is also conceded by plaintiff in error, that Congress has authority to legislate relative to the introduction of liquor into Indian country; that Congress has the right to reserve that authority when it creates a state out of Indian country; or that Congress can by a treaty with the Indians, which cedes a portion of Indian country for the formation of a state, make a reservation in such treaty that intoxicating liquor shall not be introduced into such country, even after it has ceased to be Indian country; and that Congress may, when necessary to the proper exercise of its power in respect to the guardianship of Indians, reimpose the status of Indian country upon lands which have once had but have lost that status. See Browning v. United States, 6 F.(2d) 801 (C. C. A. 8), where the cases are reviewed.

But it is contended that, inasmuch as the locus in quo, though formerly Indian country, had ceased to be such before the passage of the Act of June 30, 1919, inasmuch as no reservation of the requisite authority was made by Congress in the Oklahoma Enabling Act, and inasmuch as no Indian treaty was in effect June 30, 1919, which contained such a restriction affecting...