State v. Ta-Cha-Na-Tah

• Decision Date: 30 June 1870
• Citation: 64 N.C. 614
• Court: North Carolina Supreme Court
• Parties: THE STATE v. TA-CHA-NA-TAH.

64 N.C. 614

THE STATE

v.TA-CHA-NA-TAH.

Supreme Court of North Carolina.

June Term, 1870.

The Cherokee Indians who reside in North Carolina, are subject to its criminal laws.

Cohabitation between an Indian man and woman, according to the ancient customs of their tribe, which leave the parties free to dissolve the connexion at pleasure, is not marriage, and, therefore, the parties to such relation, may be compelled to testify against each other.

There is but one law of marriage for all the residents of this State.

A number of Indians had been together at a dance-house, and a fight had occurred there, to which the prisoner and the deceased were parties; at the breaking up of the dance, the prisoner and another, who was also charged with the murder, were walking together towards their homes, when the deceased came up, and another fight ensued, between the prisoner and his companion on one side, and the deceased, upon the other, in the??course of which the killing occurred: Held,

1. That these facts constituted no evidence of a combination between the persons charged, to commit the homicide:

2. That it was error to instruct the jury, that if there were previous malice on the part of the prisoner towards the deceased, then, even in case the prisoner fought in self-defence, he was guilty of murder; and, as the Court to which the prisoner appealed could not tell how much the latter may have been prejudiced by the charge, even where the verdict was for manslaughter only, a new trial should be granted.

( The State v. Jacob Johnson, 2 Jon. 247; Lovingood v. Smith, 7 Jon. 601; The State v. Harris, 63, N. C., 1, approved; The State v. Madison Johnson, 1 Ire. 354, observed upon.)

MURDER, tried before Cannon, J., at Spring Term 1870, of JACKSON Court.

The prisoner, Ta-cha-na-tah, together with one Johnson Ta-yah-lu-tan-hih, (not upon trial,) described as Cherokee Indians, were charged with killing Ches-qua-nut, also an Indian, the former being charged as principal, and the latter as aiding and abetting. From the testimony, it appeared that the prisoners and the deceased, and a number of other Indians were assembled at a dance-house, and the appellan and his brother Sums-key had a quarrel there with the deceased, in which Sums-key knocked the deceased down. The two prisoners and Sums-key, in company with several others, then left the dance-house, and were proceeding on their way home, when they were overtaken by the deceased, in company with some others. There was evidence to show that when the deceased came up, he attacked Sums-key, and knocked him down, and then attacked the appellant. Appellant and deceased were fighting, each having a piece of a fence rail. While the fight was going on, the prisoner, Johnson, went behind the deceased, and stabbed him in the back, from which he died.

Ta-cha-na-tah was convicted of manslaughter, and adjudged to imprisonment in the Penitentiary, and he appealed.

Phillips & Merrimon, for the appellant .

F. H. Busbee, for the Attorney-General, contra .

RODMAN, J. (After stating the case as above,)

The first objection taken, is, to the jurisdiction of the Court over the accused, by reason of his being a Cherokee Indian. The objection was not urged by the counsel for the appellant.

Prima facie, all persons within the State are subject to its criminal law, and within the jurisdiction of its Courts; if any exception exists, it must be shown. On examination of the Treaty of New Echotah, Georgia, on the 29th of December 1835, between the United States and the Cherokee Indians, we find, that, by Article XII, it was provided, that individuals and families who were averse to moving West of the Mississippi River, might remain, and become citizens of the States where they resided. Our civil laws have been extended over these Indians, at least, ever since 1838: Rev. Code, ch. 50, sec. 16; and this statute applies as well where the contract is between two Indians, as where one of the parties is white; Lovingood v. Smith, 7 Jon. 601. Unless expressly excepted, our laws apply equally to all persons, irrespective of race.

2. A woman named Uh-wat-tah was offered as a witness on the part of the appellant, and was objected to by the State, because she was his wife; she was rejected by the Judge. It was admitted by the State, that the rites of matrimony had never been performed between them according to the laws of North Carolina, or in any other form, but they merely cohabited together as man and wife, which, it was proved, was in accordance with the ancient customs of the...