State v. Tilden
| Decision Date | 24 April 1915 |
| Citation | 147 P. 1056,27 Idaho 262 |
| Parties | STATE, Respondent, v. SAMUEL TILDEN, Appellant |
| Court | Idaho Supreme Court |
INDIAN RESERVATION-RAILROAD RIGHT OF WAY-INDIAN TITLE EXTINGUISHED - HOMICIDE-JURISDICTION-NEWSPAPER REPORTS-INTRODUCTION INTO JURY-ROOM - INTOXICATION OF WITNESS - CROSS-EXAMINATION.
1. At a time prior to the date of the treaty between the United States and the Nez Perce Indians wherein it was agreed that the United States would, for a period of 25 years, prohibit the introduction of intoxicating liquors into the country then embraced within the boundaries of the Nez Perce Indian reservation, the government, by act of Congress, granted a railway right of way through said reservation, and it was provided in said act that the compensation to be paid to the Indians for said right of way should be fixed by the Secretary of the Interior, agreed to by the Indians, and paid before any right under said act should accrue to the railway company. Held, that the Indian title to the land embraced within the right of way was extinguished prior to the date of the treaty and that the land included therein was not "Indian country."
2. The appellant, a Nez Perce Indian policeman, pursuant to instruction from his superior officer, went upon said right of way at a point where it crosses the former Nez Perce Indian reservation, in order to search other Nez Perce Indians suspected of having intoxicating liquors in their possession, and while there, in an encounter with one of said Indians, shot and killed him. Held, that the state courts, and not the federal courts, have jurisdiction to try appellant for such homicide.
3. In this case the court ordered that if any daily newspapers were given to the jurors during the course of the trial any report of the proceedings of the trial therein contained should be cut from such papers or that the members of the jury should not read such report. It appears that during the trial a certain daily newspaper published a purported report of said proceedings including a purported dying declaration of the deceased, which, so far as is disclosed in the record, was never made. Although the order of the court excluding such newspaper report from the jury does not appear in the reporter's transcript, it does appear from an affidavit which was incorporated in the bill of exceptions and statement of the case upon motion for a new trial which was stipulated by counsel for both parties to be true and correct and which was settled and allowed as such by the trial court. Held, that said matter of the introduction of said newspapers into the jury-room is properly before this court for consideration upon appeal from the order overruling and denying the motion for a new trial.
4. If the bailiff cut the articles complained of from the newspapers before they were given to the jurors or if no member of the jury read said articles, it was incumbent upon counsel for the respondent to show such fact in opposition to the motion for a new trial and the failure so to do raises a presumption that the newspapers, containing such articles got into the possession of the jury and were read by its members.
5. Upon a showing made by appellant that the jury was permitted to read said newspapers, in the absence of a showing upon the part of respondent that the articles complained of had been cut therefrom or that none of the jury read said articles the court should have arrested the judgment and granted a new trial.
6. It is proper upon cross-examination to inquire of a witness to an encounter as to any facts showing his ability or lack of ability, to properly observe, clearly understand, remember and relate what took place and, under the circumstances in this case, it was error for the court to prevent the appellant from inquiring of a witness, on cross-examination as to whether he had been drinking on the evening of the homicide.
APPEAL from the District Court of the Second Judicial District for the County of Nez Perce. Hon. Edgar C. Steele, Judge.
Appellant was charged with murder and convicted of manslaughter. Judgment reversed.
Reversed and remanded.
McNamee & Harn and J. L. McClear, for Appellant.
"In criminal cases, and especially in capital felonies, where members of the jury are permitted to read editorial comments unfavorable to the accused, a new trial ought always to be granted."
If the state had refuted the statements contained in defendant's affidavits in support of motion for new trial by all the other jurors except Le Clair, which it had an opportunity to do and did not do, then the objection raised by defendant might not be tenable. (People v. Goldenson, 76 Cal. 328, 19 P. 161; People v. Williams, 24 Cal. 31.)
"Where the intention to convey a fee does not appear, as in case of the conveyance of a 'right of way' for the railroad through certain lands, the company takes an easement only." (2 Elliott on Railroads, sec. 398.)
"The grant of a right of way to a railroad company is the grant of an easement merely and the fee to the soil remains in the grantor." (14 Cyc. 1162; 6 Am. & Eng. Ency. 531; Redfield on Railways, pp. 267, 268 (cases cited); Smith v. Townsend, 148 U.S. 490, 13 S.Ct. 634, 37 L.Ed. 533; Northern P. Ry. Co. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044.)
The United States has exclusive jurisdiction to enforce liquor laws over the right of way of the Palouse & Spokane Ry. (State v. Lott, 21 Idaho 646, 123 P. 491; Dick v. United States, 208 U.S. 340, 28 S.Ct. 399, 52 L.Ed. 520.)
The defendant at the date of the alleged shooting and at the date of the death of the deceased was a United States officer in the discharge of his duties, and as such is triable only in the United States court. (In re Waite, 81 F. 359; Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648; United States v. Lipsett, 156 F. 65; Ohio v. Thomas, 173 U.S. 276, 19 S.Ct. 453, 43 L.Ed. 699.)
J. H. Peterson, Atty. Genl., T. C. Coffin and E. G. Davis, Assts., and Miles S. Johnson, for Respondent.
Since we must presume that the jury did not violate the court's instructions (2 Thompson on Trials, 2d ed., sec. 2616), it is fair to presume that the jury did not read the newspaper report, although they might have read all the rest of the paper; or if this presumption seems too violent, then we can presume that the bailiff, a court officer, performed his duty and culled from these papers all reference to the trial of the defendant.
The case of Dick v. United States, 208 U.S. 340, 28 S.Ct. 399, 52 L.Ed. 520, involved merely the question as to whether the introduction of liquor and the sale thereof to an Indian in Culdesac, which is within the exterior boundaries of the Nez Perce Indian reservation, was a violation of sec. 2139, as being "Indian country" within the terms of the treaty between the Nez Perce Indians and the United States. The question of the territorial jurisdiction of Indian police was not there passed upon nor considered. An Indian police has no authority to arrest without a warrant, except for a misdemeanor committed in his presence. (John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874.)
On the evening of May 6, 1914, the appellant, a Nez Perce Indian policeman, together with some other Indian policemen, under the direction of Theodore Sharp, Esq., superintendent of the Nez Perce Indian school at Lapwai, Idaho, went to Joseph, a station on the Northern Pacific railway, at a point where said railway, which was formerly the Palouse & Spokane railway, crosses the former Nez Perce Indian reservation, for the purpose of intercepting certain other Nez Perce Indians who were returning from Pullman, Washington, where they had gone to play baseball, and for the purpose of making search of said Indians and their baggage to ascertain if they had any intoxicating liquor in their possession, and with a view to preventing the introduction of such liquor upon former Nez Perce Indian reservation, if any was found; and with the further intention of arresting any of said Indians who might be found to be violating the laws of the United States prohibiting the introduction of such liquor into the Indian country. While at the station, the appellant had an encounter with one William Jackson, a Nez Perce Indian, who had accompanied said baseball players, in which the appellant shot the said Jackson and inflicted a wound upon him from the effects of which the said Jackson, on May 8, 1914, died. The point at which the homicide occurred was upon said railway right of way.
The defendant was arrested by the state authorities, and a trial upon a charge of murder preferred against him by the prosecuting attorney of Nez Perce county resulted in his conviction of the crime of manslaughter, from which judgment of conviction and from the order of the court overruling his motion for a new trial he has appealed to this court.
A number of assignments of error have been made on behalf of the appellant by his counsel in support of these appeals, which have been grouped in his brief and have been argued under five points, or subdivisions, wherein it is contended that the court, erred as follows:
1. In...
To continue reading
Request your trial
-
State v. Douglass
...that it may well be said that the misconduct, rather than the evidence, was the determining factor in their decision. In State v. Tilden, 27 Idaho 262, 147 P. 1056, court approves the language of Chief Justice Sharkey in Hare v. State, 4 Howard 187, which might be applied to the alleged mis......
-
State v. Baker
...1913A, 724, 117 P. 757. The case of State v. Moon, supra, is not an authority to support counsel's contention, and in the case of State v. Tilden, supra, the question of waiver never presented nor considered by the court. True, the record shows that the deputy prosecuting attorney was advis......
-
State v. Hargraves
...may be limited is largely in the discretion of the trial judge." See, also, State v. Mox Mox, 28 Idaho 176, 152 P. 802; State v. Tilden, 27 Idaho 262, 147 P. 1056; 40 2480, and notes. It will be remembered that appellant denied that he knew Hunter. He testified specifically that he did not ......
-
State v. Cypher
...county not so permeated with such publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1607, 16 L.Ed.2d 600 (1966); State v. Tilden, 27 Idaho 262, 147 P. 1056 (1915); Irvin v. Dowd,366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Estes v. State of Texas,381 U.S. 532, 85 S.Ct. 1628, 14 L......