Mulligan v. United States
| Citation | 120 F. 98 |
| Decision Date | 02 February 1903 |
| Docket Number | 1,638. |
| Parties | MULLIGAN v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Syllabus by the Court.
The fact that a person belongs to both the class specified in an indictment and to another class does not constitute a fatal variance between pleading and proof.
The sale of liquor to an Indian who has an allotment or patent to land which the United States holds in trust for him under the act of March 2, 1889 (25 Stat.c. 405, Sec. 11, p. 891), is a public offense under the act of January 30, 1897 (29 Stat.c 109, p. 506).
Alfred L. Redden, Edwin D. McKeever, and Richard F. Hayden, for plaintiff in error.
J. S Dean, for defendant in error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
The act of Congress of January 30, 1897 (29 Stat.c. 109, p. 506) provides that any person who shall sell any malt, spirituous or vinous liquor 'to any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian a ward of the Government under the charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government through its departments exercises guardianship,' shall be punished by imprisonment for not less than 60 days and by a fine of not less than $100. The plaintiff in error, Edward Mulligan, was indicted and convicted under this act of selling liquors to one Pat Ko-Shuck, 'being,' as the indictment declares, 'then and there an Indian, and a member of the prairie band of Pottawatomie Indians, and a ward of the Government, under the charge of W. R. Honnell, an Indian agent. ' The proof was that Pat Ko-Shuck was an Indian of the prairie band of Pottawatomie Indians, and a ward of the Government, under the charge of W. R. Honnell, and Indian agent, and that he was also an Indian to whom an allotment of land had been made the title to which was held in trust by the Government under the act of March 2, 1889 (25 Stat.c. 405, Sec. 11, p. 891).
The plaintiff in error assails the judgment of conviction on two grounds: (1) That there was a variance between the pleading and the proof; and (2) that the sale of liquors to an Indian who has received an allotment and become a citizen is not an offense.
It is insisted that there is a variance between the pleading and the proof because the statute declares that it shall be an offense to sell liquors (1) 'to any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government,' or (2) 'to any...
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