State v. McAlhaney

• Decision Date: 19 November 1941
• Docket Number: 2.
• Citation: 17 S.E.2d 352,220 N.C. 387
• Parties: STATE v. McALHANEY et al.
• Court: North Carolina Supreme Court

17 S.E.2d 352

220 N.C. 387

STATE v. McALHANEY et al.

No. 2.

Supreme Court of North Carolina

November 19, 1941

Criminal prosecution under bill of indictment which charges that the defendant McAlhaney, et als., did unlawfully, willfully and feloniously: (1) conspire to kidnap one Tom King; (2) kidnap one Tom King; (3) conspire to commit a felonious assault upon one Tom King; and (4) commit a felonious assault as defined in C.S. § 4214 upon one Tom King.

When the cause came on for trial, at the conclusion of the evidence, it appearing that defendant McAlhaney is a white person and Tom King, the party alleged to have been kidnapped and assaulted, is an Indian and that the alleged assault occurred within the bounds of the Cherokee Indian Reservation, the defendant prayed the court to charge the jury as follows: "The court charges the jury that, even though it should find beyond a reasonable doubt that the defendants, or any of them, committed the acts alleged in the bill of indictment, yet if the jury should further find that said acts were committed on the lands embraced in what is known as the Cherokee Indian Reservation and should further find that the person, namely Tom King, upon whom the assault was alleged to have been made and who was alleged to have been kidnapped and against whom the conspiracies were alleged to have been entered into, was a Cherokee Indian and a member of the Indian Band located on said Reservation, then the court charges you that this court would not have jurisdiction of the offenses, and you should, therefore, return a verdict of not guilty as to all the defendants." The court declined to give the prayer as requested and defendant McAlhaney excepted.

The jury returned a verdict of "Not Guilty" upon the first, second and third counts, and upon the fourth count "Guilty of an assault, causing serious damage." From judgment upon the verdict the defendant McAlhaney appealed.

Jones Ward & Jones, of Asheville, and Baxter Jones, of Bryson City, for appellant L. F. McAlhaney.

Harry McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton Asst. Attys. Gen., for the State.

BARNHILL Justice.

The defendant relies solely upon his exceptive assignment of error based on the refusal of the court to instruct the jury as prayed. In so doing he concedes that, ordinarily, the criminal laws of the State are applicable to offenses committed within the Indian Reservation. State v Adams, 213 N.C. 243, 195 S.E. 822. He contends, however that the Federal Government, by the enactment of section 213, Title 25, U.S.C.A., has assumed jurisdiction of all felonious assaults committed by white persons upon Indians within the Indian country and that this jurisdiction once assumed is exclusive, depriving the State courts of any jurisdiction to try white persons charged with a felonious assault within the Cherokee Reservation. This contention cannot be sustained.

After the colonies had achieved independence the thirteen states which then came into being succeeded under the Treaty of Peace to the rights of England in this territory. The result of this was that the sovereignty of the territory embraced within the several states, together with the land not previously granted, passed to these States subject to the possessory rights of the Indians over the land which they occupied. Fletcher v. Peck, 6 Cranch 87, 3 L.Ed. 162; Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; Eu-che-lah v. Welch, 10 N.C. 155; United States v. Wright, 4 Cir., 53 F. 2d 300; Eu-che-lah v. Welch, supra.

While the Federal Government has supervised their contracts, educated their children and made generous provisions for their support under the guardianship relation existing between the Federal Government and the Indians, they remain subject to the laws of North Carolina.

"They [the Cherokee Indians in North Carolina], are citizens of that State, and bound by its laws." Eastern Band of Cherokee Indians v. United States, 117 U.S. 288 Cherokee Nation v. Georgia, 5 Pet. 1, 8...