State v. Chambers, 42450
| Decision Date | 15 February 1973 |
| Docket Number | No. 42450,42450 |
| Citation | 506 P.2d 311,81 Wn.2d 929 |
| Parties | The STATE of Washington, Respondent, v. Michael Rodger CHAMBERS, Appellant. |
| Court | Washington Supreme Court |
Hovis, Cockrill & Roy, James B. Hovis, Yakima, for appellant.
Jay Roy Jones, Asotin County Pros Atty., Asotin, Slade Gorton, Atty. Gen., J. L. Coniff, Asst. Atty. Gen., Olympia, for respondent.
Michael Chambers was convicted of hunting deer without a valid Washington State hunting license in his possession. He appeals.
There is substantial evidence that on October 11, 1969, during the open deer season, appellant killed a spiked buck mule deer in the Couse Creek area of Asotin County. Appellant's counsel admitted, in oral argument, that the area in which the kill took place was at least 40 miles from the nearest territory ceded to the United States government by the Yakimas in the Treaty of 1855.
The land on which the deer was killed and from which it was removed was privately owned by a Mrs. Weissenfels. An unoccupied house was located thereon, approximately a third to a half mile from the scene. The property was range land entirely enclosed by a barbed wire fence. It was necessary for one to climb over the fence or to go through the gate to gain entry. Although appellant does not recall climbing the fence, he admits that there could have been one.
The fence enclosing the Weissenfels property was neither posted with Game Department signs authorizing permissive hunting nor with 'no trespassing' or 'no hunting' signs. There is some evidence that adjacent land owned by a Mr. Floch may have been posted with signs furnished by the Game Department under its sportsman-farmer program. If the Floch land was posted, such signs would have indicated that the owner of the posted land had opened it to hunters by permission. There is no government land in the immediate vicinity.
At the time the deer was killed, appellant did not possess a valid Washington State hunting license as required by RCW 77.32.010. He was, however, an enrolled member of the Confederated Tribes and Bands of the Yakima Indian Reservation. When he was arrested appellant presented the game protector with proof of his enrolled status. It was appellant's position then, as well as now, that he was entitled to hunt without a license, pursuant to the provisions of the Treaty of 1855 (12 Stat. 951 (1859)). Article 3 of the treaty reads in part:
The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; Together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle Upon open and unclaimed land.
(Italics ours.)
The central question is whether article 3 of the treaty entitled appellant to kill the deer, as he did, without a state hunting license, on fenced private property, and off the reservation.
During the trial the court admitted minutes of the proceedings that gave rise to the treaty. The trial judge used them as an aid for understanding article 3 which in turn gave rise to instruction 4A. The court refused, however, to submit the treaty minutes to the jury for the purpose of enabling them to make their own interpretation of article 3.
Appellant concedes that the proper legal interpretation of article 3 is technically a matter of law. Nevertheless, he assigns error to the trial court's refusal to submit the minutes and contends 'the ends of justice would have been better served to allow them (the jury) to observe the documents upon which their deliberation must . . . be based.'
The trial court did not err. The proper construction and interpretation of article 3 was a matter of law to be resolved by the trial court and not by the jury. RCW 10.46.070; RCW 4.44.080; State v. Comer, 176 Wash. 257, 266, 28 P.2d 1027 (1934); State v. Richards, 97 Wash. 587, 167 P. 47 (1917). It is the duty of the jury to accept the court's statement of the law, regardless of what the jurors personally may believe the law is or ought to be. On the other hand, it is the province of the jury to apply the facts to the court's declaration of the law. RCW 10.46.070; RCW 4.44.090. It would have been error for the trial court to submit the minutes to the jury and, thus assign to it the additional duty of resolving the questions of law inherent in the factual situation.
Appellant also assigns error to the trial court's refusal to permit Mr. Louis Cloud to testify concerning an asserted interpretation of the treaty by the Indian signatories in 1855. Mr. Cloud is a member of the Yakima tribal council and chairman of several tribal committees.
Appellant's offer of proof reveals that Mr. Cloud's testimony was presented solely for presentation to the Jury. It was submitted to aid the jurors in their interpretation of that part of article 3 which refers to an Indian's right to hunt 'upon open and unclaimed land'. This, of course, is the very subject upon which the trial court was required to instruct the jury. Had the jury been permitted to hear the proffered testimony, the legal meaning of the questioned phrase could have dissolved into a state of utter confusion. Conceivably the jury could have construed article 3 in a manner quite differently from that given it in the court's instruction. For this reason it would have been error for the trial court to abdicate its responsibility by assigning to the jury the duty of resolving the central question of law.
Appellant did not offer the testimony to be heard in the absence of the jury as an aid to the Court in formulating an instruction concerning the meaning of the questioned phrase. While such consideration might have provided a logical interpretive aid, no such offer of proof was made. Thus, we may not speculate upon whether the testimony should have been received for that limited purpose. State v. Pierce, 175 Wash. 523, 27 P.2d 1087 (1933); State v. Myers, 47 Wash.2d 840, 290 P.2d 253 (1955); State v. Rakes, 2 Wash.App. 833, 472 P.2d 399 (1970).
Appellant asserts the trial court erred in its failure to give his proposed instructions 7, 8, 9, 10, 11 and 12. We do not agree. The trial court correctly refused to give them. Each was a proposed rule to aid the jury in interpreting or construing Indian treaties. Assuming, without deciding, that they correctly state abstract rules for the construction or interpretation of such treaties, they should be used only by the trial court in formulating the law upon which to instruct the jury. RCW 10.46.070; RCW 4.44.080; State v. Comer, Supra; State v. Richards, Supra. As indicated earlier, it would have been error to submit such rules of construction or interpretation to the jury. This would have left to the jury the duty of interpreting the treaty and, thus, declaring the ultimate law based upon the jury's own interpretation thereof.
Appellant's exception to the court's failure to give his proposed instruction 14 is not well taken. It is grounded upon the mere statement that it is a correct statement of the law. Such an exception is not sufficient. State v. Lyskoski, 47 Wash.2d 102, 287 P.2d 114 (1955).
Appellant assigns error to the court's refusal to give his proposed instruction 15 which reads:
In determining what 'Occupied' means you are instructed that the definition in Webster's Dictionary is as follows: To engage the attention or energies of; to fill up (an extent in space or time); to take or hold possession of; to reside in as an owner or tenant.
(Italics ours.) Assuming the abstract definition is correct, clearly the italicized portion is not proper. It fails to apply to the subject of occupying, holding or possessing land. The trial court is not called upon to revise a proposed instruction to make it properly applicable. Ste. Marie v. Command, 60 Wash.2d 189, 373 P.2d 121 (1962); See also Mannisto v. Boeing Airplane Co., 60 Wash.2d 304, 373 P.2d 496 (1962).
The trial court properly rejected the instruction for another reason. There was no apparent logic for giving the instruction and no valid reason for giving the instruction was disclosed. The sole explanation for taking exception to the court's refusal to give the proposed instruction was that it is 'a definition of 'Occupied' which should be before the jury.' The word 'occupied' defined in the proposed instruction does not appear in any instruction given by the...
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