State v. Hawk

• Decision Date: 23 January 1899
• Citation: 22 Mont. 33
• Parties: STATE v. SPOTTED HAWK et al.
• Court: Montana Supreme Court

22 Mont. 33

STATE

v.SPOTTED HAWK et al.

Supreme Court of Montana.

Jan. 23, 1899.

Appeal from district court, Custer county; C. H. Loud, Judge.

Spotted Hawk and others were indicted for murder. Spotted Hawk was convicted, and he appeals. Reversed.

Merrill & Farr and Sanders & Sanders, for appellant.

C. B. Nolan, Atty. Gen., and T. J. Porter, for the State.

BRANTLY, C. J.

The defendant was convicted of murder in the first degree, in the district court of the Seventh judicial district, in and for Custer county, on November 9, 1897. On the 22d day of November, he was sentenced to be hanged. From this judgment of conviction, and from an order overruling his motion for a new trial, he has appealed to this court. We notice the assignments of error somewhat in the order in which they are made. The statement of fact appears in the opinion.

1. At the arraignment, the defendant made a motion to set aside the information, on the two grounds: That he had not been legally, or at all, committed by a magistrate; and that the information does not show that the county attorney obtained leave to file an information charging defendant with murder in the first degree. As a matter of law, a defendant is not entitled to be committed by a magistrate before he is informed against. This may be done by leave of court. Const. art. 3, § 8. He may also be prosecuted by indictment by a grand jury. Either mode is lawful. Nor must the information show on its face that it was filed by leave of court. Even if this were true, the objection will not avail in this case, for the information itself shows that leave of court for that purpose was asked in writing, and granted, before the information was filed. The record, independently of this, shows that leave was asked in writing, and granted. The affidavit filed in support of this motion merely alleges that the defendant had not been examined by a committing magistrate. This is not a ground upon which an information may be set aside, after leave has been obtained to file it. It appears that the defendant was first arrested upon a warrant issued by a magistrate. This proceeding was abandoned. The contention is made that this is ground for setting aside the information. No defendant, however, has a vested right to be prosecuted by any particular method. All he can claim is that he have a fair trial by one of the modes provided by law.

The affidavit and petition for leave to file the information states the name of the deceased as “William Hoover.” His name was “John Hoover.” It is therefore insisted by counsel for defendant that this variance in the name vitiates the leave granted. This matter was not presented to the court below. Even if it had been, we are not prepared to say that it would have been error to disregard it. We do not understand that an application for leave to file an information must conform strictly to the technical rules of pleading.

2. Counsel for defendant insist that the information does not state facts sufficient to show that the court had jurisdiction. After stating facts sufficient to charge the defendant with murder, it contains the following allegations: “That all the defendants are Cheyenne Indians, and that the said Hoover was a white man, and was, at the time and place of the murder, within the county of Custer, and not within the limits of any Indian reservation.” Defendant claims that this is a necessary allegation, but, inasmuch as there is within Custer county the Ft. Keogh military reservation, the information should also show that the crime was not committed there. The information is in conformity with the statute. The district court has general jurisdiction of all felonies committed within the limits of the county where it sits. The allegation quoted supra is surplusage. If the defendant should be charged with a crime committed out of the court's jurisdiction, this is a matter to be taken advantage of at the trial. The authorities cited by counsel in the brief have reference to courts of limited jurisdiction, and have no application. This question was presented by demurrer. The court overruled the demurrer. We think this correct.

3. The contention is made in this court, for the first time in this case, that Indians maintaining tribal relations, and occupying a reservation within the state, are not subject to the jurisdiction of state courts, and triable therein, for crimes committed by them against white men while off the reservation. It appears from the proof that the Cheyenne Indians sustain tribal relations, and occupy a reservation in charge of an agent of the federal government. It also appears that the killing of Hoover was done without the limits of the reservation. This contention cannot be maintained either upon reason or authority. Where crimes are committed by whites against Indians, or by Indians against whites, outside of a reservation situated within a state, the jurisdiction is in the state courts. 10 Am. & Eng. Enc. Law, 443, and authorities cited. In support of this summary, among other cases, is cited U. S. v. Sa-Coo-Da-Cot, 1 Dill. 271, 27 Fed. Cas. 923. After going fully into the whole case, which was one arising in Nebraska, and similar to the one under consideration, the learned judge concludes that the United States court had no jurisdiction, but that it was in the state courts, because there was no valid statute of congress or treaty stipulation to the contrary. No act of congress or treaty stipulation affecting the jurisdiction of the courts of this state as to such offenses has been called to our attention, nor have we been able to find any. See, also, State v. Campbell (Minn.) 21 Lawy. Rep. Ann. 169, with notes (s. c. 55 N. W. 553).

4. During the argument upon the demurrer and the motion to set aside the information, the defendant was not present in court. Also, on one day during the trial at the convening of the court after the noon recess, and while a witness for the state was on the stand, the county attorney put one question to the witness before the defendant appeared in court. This question was not answered, the court having stopped the proceedings until the defendant was brought in. Thereupon the jury was called, and the examination of the witness resumed. As a matter of fact, so far as concerns the trial after the issues were made up, no testimony was taken, nor any other step, during the absence of the defendant. As to this feature of the proceedings in the court below, the defendant has suffered no prejudice. He therefore has no right to complain. Touching the absence of the defendant from the court room during the progress of the argument upon the demurrer and the motion to set aside the information, we think that this was in no sense of the word absence from court during trial. The word “trial,” when used in connection with criminal proceedings, means proceedings in open court, after the pleadings are finished, and it is otherwise ready, down to and including the rendition of the verdict. It includes all those steps in the trial during which the defendant may be of assistance to his counsel in conducting the proceedings. It does not include the preliminary steps wherein the court is passing upon questions of law and preliminary motions, with a view of settling the issues. 3 Am. & Eng. Enc. Law, 735, and note. It is true, the defendant must be present at the time of his arraignment in felony cases; but we apprehend this is for the purpose of informing the court that the plea interposed by him is his own personal plea. In this case he was present, and entered his plea in person, by the aid of an interpreter.

5. Before the trial was begun in the court below, the defendant asked the court for an order changing the place of trial, on two grounds, to wit: First, that he believed that the people of the county of Custer, state of Montana, were so prejudiced against him, and against all the members of his tribe, that he could not have a fair and impartial trial in that county; second, that he believed that it would be impossible to obtain jurors in the county of Custer who had not formed an opinion as to the guilt or innocence of the defendant, such as would disqualify them for the trial of his cause. This motion was based upon the affidavit of the defendant, with a number of clippings from newspapers, including the Stock Growers' Journal, the Yellow-stone Journal, weekly and daily, both published in Miles City, and from the Forsyth Times, published in Forsyth, Custer county. These clippings are referred to in defendant's affidavit, which, omitting immaterial parts, is as follows: “That at the time the body of Hoover, the sheepherder, was found, the citizens of this county were greatly alarmed and excited; that the excitement was not local, but extended to every part of the county, and even to other counties; that cowboys and ranchmen to the number of 200 left their homes, and gathered at one of the ranchers residing near the Cheyenne Indian Agency, whose name is not known to deponent; that these men were armed with six-shooters, Winchester rifles, and Savage rifles; that the purpose of the gathering was to demand of Capt. George W. H. Stouch, Indian Agent, and of the Indians, the surrender of the murderer of Hoover, they claiming that the murderer of Hoover was a member of the tribe of Cheyenne Indians, and it was their intention, if the alleged murderer of Hoover was not surrendered, to go on the reservation in a body, and exterminate the entire tribe of Indians; that, in furtherance of this object, several hundred rounds of cartridges and a great number of Savage rifles were ordered by them from Miles City; that, in addition to this, cartridges and rifles to a great number were sent to them from other portions of the county, and several hundred rounds of cartridges and a large number of rifles were ordered from Eastern cities; that these cowboys and settlers were only persuaded from attacking the Indians by...