State v. Tully

• Decision Date: 01 December 1904
• Citation: 78 P. 760,31 Mont. 365
• Parties: STATE v. TULLY.
• Court: Montana Supreme Court

78 P. 760

31 Mont. 365

STATE v. TULLY.

Supreme Court of Montana

December 1, 1904

Milburn J., dissenting in part.

Commissioners' Opinion. Appeal from District Court, Missoula County; F. C Webster, Judge.

John Tully was convicted of murder in the first degree, and he appeals. Reversed.

E. E Hershey, for appellant.

Jas. Donovan, for the State.

POORMAN C.

Defendant was convicted of murder in the first degree. A motion in arrest of judgment was interposed and overruled. Defendant then moved for a new trial. This motion was also overruled. The appeal is from the judgment, and from the order overruling the motion for a new trial.

1. The information states generally that the crime was committed in Missoula county, but contains no other allegations of venue. The defendant contends that inasmuch as the court takes judicial notice of the fact that Ft. Missoula Military Reservation is situated within Missoula county (section 3150, Code Civ. Proc.), and that the federal courts have exclusive jurisdiction of the trial of this offense if committed thereon (section 40 et seq., Pol. Code; section 1, art. 2, Const. Mont.), the information should contain some averment that the crime, though committed within the county, was not committed on this reservation. This question as to the sufficiency of the information, and the further claim of defendant that the court erred in overruling his motion in arrest of judgment, and the further claim that the court erred in receiving evidence on the hearing of the motion in arrest of judgment, will be considered together.

(a) District courts are courts of general jurisdiction. The counties constituting each district are designated by legislative enactment. In this enactment no exception is made of reservations. The form of information given in section 1833 of the Penal Code contains no allegation relating to venue, except the general statement that the offense was committed within the county. Section 1841, Pen. Code, specifies what must be alleged in an information. That relating to venue is contained in subdivision 4, which reads: "That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein." Criminal actions must be tried in the county where the offense was committed (section 16, art. 3, Const. Mont.); and when "an offense is committed in part in one county and in part in another," or "on the boundary of two or more counties," the jurisdiction is in either county. Sections 1564, 1565, Pen. Code. The exception named in subdivision 4 of section 1841, supra, undoubtedly refers to offenses committed in the manner named in said sections 1564 and 1565. It is true, the court may take judicial notice that this military reservation is situated within Missoula county, and that the state court has no jurisdiction of this offense, if committed thereon; yet the jurisdiction of the federal courts being exceptional, and that of state courts general, it is not necessary, in an information, to negative the jurisdiction of the federal courts. Where a statute states in detail what must be alleged with reference to venue, such allegations need not be broader than the statute. Practically this same question was before the Supreme Court of California in People v. Collins, 39 P. 16, where the court said: "The jurisdiction of the state being general, and that of the United States exceptional, it is not necessary to negative, in an indictment or information in the state courts, the jurisdiction of the federal courts. It is like an exception in an act creating or defining a public offense, in which case it is held that, if the exception is not necessary to the description of the offense, it need not be alleged or negatived, but is matter of defense simply." In Territory v. Burns, 6 Mont. 72, 9 P. 432, this court said: "When an exception is stated in the statute, it is not necessary to negative such exception, unless it is a constituent part of the definition of the offense." This same question relative to the error complained of was passed upon in State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026, where the court said: "The information is in conformity with the statute. The district court has general jurisdiction of all offenses 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." We find no reason for disturbing the decision in the Spotted Hawk Case, but hold this information sufficient as to its allegations respecting the venue of this offense.

(b) A motion in arrest of judgment must be founded on some defect in the information (section 2200, Pen. Code) mentioned in section 1922 of the Penal Code. One of the defects mentioned in this latter section is where it appears that the court has no jurisdiction of the offense charged therein. The only error complained of here is lack of jurisdiction, and in this the contention of defendant is not sustained. Whether the failure to demur was a waiver, within the meaning of the decision in State v. Mahoney, 24 Mont. 281, 61 P. 647, is immaterial. The motion was properly overruled.

(c) At the hearing on the motion in arrest of judgment the attention of the court was called to certain matters relating to the situs of Ft. Missoula Military Reservation, to which reference had not been made at the trial of the case, and these matters were inserted in the record. Extrinsic evidence cannot be received at the hearing on a motion in arrest of judgment. People v. Johnson, 71 Cal. 384, 12 P. 261; Commonwealth v. Brown, 150 Mass. 334, 23 N.E. 98; King v. State, 91 Tenn. 617, 20 S.W. 169; State v. Creight, 2 Am. Dec. 656. It is claimed by respondent that the matters to which the attention of the court was directed were only such as could be noticed judicially. However this may be, the information not being open to any objection made, and none of these matters being used or inserted in the record until after verdict, the defendant was not in any manner prejudiced; and the questions raised on the motion have here been examined and considered irrespective of any extrinsic matter.

2. The question of jurisdiction is again urged on the motion for a new trial, the defendant maintaining that the evidence shows that the offense was committed on the Ft. Missoula Military Reservation. The evidence shows that both the defendant and the deceased were soldiers stationed at Ft. Missoula, and that the homicide was committed on October 18, 1903, on Sec. 36, Tp. 13 N., R. 20 W., on the sentry beat just back of the commissary building; that several other buildings then used by the military authorities as a part of the post of Ft. Missoula were situated on this section; and that, so far as military jurisdiction goes, the commanding officer of the post was supreme over the tract of land thus occupied. Military jurisdiction, however, does not in time of peace extend to the trial of persons accused of murder, although both the defendant and the deceased were, at the time the homicide was committed, soldiers in the United States army, and the offense was committed on a military reservation. This question was considered at some length in United States v. Clark (C. C.) 31 F. 710, where the authorities are reviewed and discussed.

The Constitution of the United States reserves authority in Congress to exercise exclusive jurisdiction over military reserves. Section 8, art. 1, in part provides: "To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square), as may, by cession of particular states, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." With reference to the term "exclusive legislation," as used in the Constitution, Justice Story, in United States v. Cornell, 2 Mason, 60, F. Cas. No. 14,867, says: "The Constitution of the United States declares that Congress shall have power to exercise 'exclusive legislation' in all 'cases whatsoever' over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings. When, therefore, a purchase of land for any of these purposes is made by the national government, and the state Legislature has given its consent to the purchase, the land so purchased, by the very terms of the Constitution, ipso facto falls within the exclusive legislation of Congress, and the state jurisdiction is completely ousted. This is the necessary result, for exclusive jurisdiction is the attendant upon exclusive legislation."

On the admission of Montana into the Union, sections 16 and 36 in each township not reserved were granted to the state as school lands. That part of the act of Congress relating thereto (Act Feb. 22, 1889, c. 180) is as follows: "That upon the admission of each of said states [Washington, North Dakota, South Dakota, and Montana], sections 16 and 36 in every township of said proposed states, where such sections or any part thereof have been sold or otherwise disposed of by or under the authority of any act of Congress, or other lands equivalent thereto, in legal subdivisions of not less than a quarter section, and as contiguous...