State v. Buckaroo Jack

• Decision Date: 13 July 1908
• Docket Number: 1,747.
• Citation: 96 P. 497,30 Nev. 325
• Parties: STATE v. BUCKAROO JACK.
• Court: Nevada Supreme Court

96 P. 497

30 Nev. 325

STATE v. BUCKAROO JACK.

No. 1, 747.

Supreme Court of Nevada

July 13, 1908

Appeal from District Court, Humboldt County.

Buckaroo Jack was convicted of murder in the first degree, and he appeals. Affirmed.

M. S Bonnifield and S. J. Bonnifield, for appellant.

R. C Stoddard, Atty. Gen., for the State.

NORCROSS J.

Appellant was indicted in the Second judicial district court in and for Humboldt county for the crime of murder, the indictment alleging that on the 10th day of April, 1907, he murdered a human being, commonly known by the name of "Lotta," whose real name was to the grand jury unknown. Appellant interposed a plea of not guilty, was tried for the offense and on the 17th day of October, 1907, the jury returned a verdict of guilty of murder in the first degree, and fixed the penalty at death. Judgment in accordance with the verdict was thereupon duly entered.

Motions were made to dismiss the proceeding, and in arrest of judgment, upon the ground that the court had no jurisdiction of the case, because the proof showed that both the defendant and the person killed were Indians, and that the indictment did not allege, nor the proof show, that the offense was not committed on an Indian reservation. The question of jurisdiction is the only one presented upon the record. Prior to 1885, the courts of this state were without jurisdiction to punish for an offense committed by one Indian against another Indian, whether the offense was committed on or off of an Indian reservation. State v. McKenney, 18 Nev. 182, 2 P. 171. The Legislature of 1885 passed an act, entitled "An act extending the criminal laws of this state to and over Indians therein." The act contains but one section, and reads as follows: "All the laws of this state concerning crimes and punishments, or applicable thereto, and all the laws of this state concerning procedure or applicable thereto, are hereby extended to and over all Indians in this state, whether such Indians be on or off an Indian reservation, and all of said laws are hereby declared to be applicable to all crimes committed by Indians within this state, whether committed on or off an Indian reservation, save and except an offense committed upon an Indian reservation by one Indian against the person or property of another Indian." Comp. Laws, § 4655. By Act Cong. March 3, 1885 (23 Stat. 385, c. 341, § 9), it is provided that all Indians committing, against the person of another Indian, murder and certain other designated crimes, "within the boundaries of any state of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States." The provisions of this federal statute were sustained as constitutional in the case of U.S. v. Kagama et al., 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228.

It is claimed by counsel for appellant that under the provisions of the statute of this state, where the offense is committed by one Indian against another Indian, it is essential that the indictment charge, and the proof upon the part of the state show, that the offense was committed off an Indian reservation. In this contention we are unable to agree with appellant's counsel. The jurisdiction of the state courts over Indians within its borders is made general, subject only to the exception where the offense is committed by one Indian against another upon an Indian reservation. The jurisdiction of the federal courts to try certain and specified offenses, including murder, committed by Indians is not general, but is limited only to cases where the offense was committed upon an Indian reservation, which special and limited jurisdiction is within the exception of the state statute. Where the state jurisdiction is general, and that of the federal government is special and limited, it is not necessary, in a prosecution in the state court, to negative the jurisdiction of the United States, nor is it incumbent upon the state to prove further than that the offense was committed within the county. The reverse would doubtless be the case in the federal courts. U.S. v. Ward (C. C.) 42 F. 320.

The principle here involved is analogous to that considered in the case of State v. Ah Chew, 16 Nev. 50, 40 Am Rep. 488, wherein this court, by Hawley, J., said: "Appellant's counsel argue that this indictment does not state an offense, because it does not show that the defendant is not within the exceptions specified in the statute. They claim the rule to be that, if there is an exception in the enacting clause, the prosecution must negative the exception, and state in the indictment that the defendant is not within it. The principle decided in State v. Robey, 8 Nev. 321, is adverse to this rule. There are c...