United States v. Berry

• Decision Date: 08 November 1880
• Citation: 4 F. 779
• Parties: UNITED STATES v. BERRY and others.
• Court: U.S. District Court — District of Colorado

4 F. 779

UNITED STATES v. BERRY and others.

United States District Court, D. Colorado.

November 8, 1880

C. W Wright, Att'y Gen., for the State.

E. L Johnson, U.S. Dist. Att'y, for the government.

B. M Hughes, S. E. Browne, T. M. Patterson, and T. Macon, for defendants.

HALLETT D.J.

Three persons charged with homicide committed on an Indian reservation are held by the marshal, under a warrant issued by a circuit court commissioner, to answer for that crime. It seems that the commissioner assumes jurisdiction to act in the premises on the ground that the place of the alleged crime is within the sole and exclusive jurisdiction of the United States. Denying that proposition, and affirming that the place where the crime is said to have been committed is within the criminal jurisdiction of the state, the attorney general of the state suggests to the court that the proceedings of the commissioner are without authority, and he prays that prohibition may issue to arrest them, in order that the state may proceed against the offenders. In support of the application, it is assumed that in making inquiry as to the violations of the laws of the United States a commissioner may be regarded as holding an inferior court, over which this court, having cognizance of the crimes themselves, may have supervisory jurisdiction. But this appears to be founded on an erroneous view of the relations of those officers to this court; for it is plain that commissioners are but officers of the court, to whom are committed some of the duties which must otherwise be performed by the court itself, or the judge thereof. The exigencies of the public service demand that speedy inquiry shall be made into all criminal charges, in order that offenders may be brought to justice; and as, from the press of business or remoteness from the place where the crime may be committed, or other cause, the court cannot always, or ordinarily, perform that service, commissioners are appointed to facilitate the business. In all that they do they are not separate and independent tribunals, but the arms of the court to execute the preliminary work of securing the presence of offenders at the time appointed for arraignment and trial. Indeed, they are not, and under the constitution they cannot be, clothed with judicial power to hear and finally determine any matter whatsoever. Their duties relate only to the detention of the accused until the charge against him may be formally presented to the court, and constitutionally tried. In that they are not bound to hear more than the evidence of the government, and they do not finally determine any question touching the guilt or innocence of the accused. Accordingly, it is said in the books that the function of an examining magistrate is ministerial and not judicial, (1 Bishop's Crim.Pro. 237;) and upon this consideration alone the writ of prohibition to control the conduct of a commissioner must be denied. High's remedies, Sec. 769.

But, in a broader view of the nature and extent of his office, it will be apparent that a commissioner is an officer of the court merely, as to whom the writ of prohibition is never employed. It does not, however, follow from this course of reasoning that the court has no control over the proceedings of a commissioner when acting as an examining magistrate. On the contrary, if in the discharge of such duty a commissioner is an officer of the court, it would seem to be proper in the court to assume control of the proceedings whenever justice may require that it should be done. In important cases it is familiar practice for the judges of superior courts having cognizance of criminal offences to sit as examining magistrates; and, after commitment, the proceedings of magistrates are often reviewed on habeas corpus and certiorari, in the court having cognizance of the crime.

In that way the courts do but assume control in the preliminary stages of matters of which they have the final decision under the law, and no argument can be necessary to support them in a practice which so clearly tends to further the ends of justice. I do not doubt the authority of the court to take charge of these proceedings, and, as the attorney general of the state has come here to deny the jurisdiction of the federal government, that course will be adopted. The commissioner will be directed to certify his proceedings into this court, to the end that we may consider here what may be alleged against them.

The proceedings were accordingly certified to the court, and the questions involved argued and determined, by consent, in the circuit court:

(Circuit Court, D. Colorado. November 19, 1880.)

McCRARY C.J.

It is alleged that on the twenty-seventh day of September, 1880, the crime of murder was committed within the district of country set apart by treaty of March 2, 1868, between the United States and several bands of the Ute tribe of Indians, (15 St. 619,) and W. H. Berry and S. N. Hoyt are accused of said crime. The United States claim jurisdiction of the offence on the ground that the murder charged was committed in a place within their exclusive jurisdiction, and in accordance with that claim the accused have been arrested upon information filed before a commissioner of this court, before whom their cases have been partially examined, and in whose custody they remain, awaiting further proceedings. The state of Colorado also claims that it has exclusive jurisdiction of the offence charges upon the ground that the murder was committed within the territorial limits of that state, and in a place within its exclusive jurisdiction; and, by an information filed herein by the attorney general of the state, this court is requested to order that the pending proceedings before said commissioner be discontinued, and that the prisoners be turned over to the authorities of the state for trial.

The sole question for our consideration is, was the murder committed in a place within the exclusive jurisdiction of the United States? for if it was not, the federal jurisdiction cannot be maintained.

Section 5339 of the Revised Statutes of the United States provides that 'every person who commits murder-- First, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States * * * shall suffer death.'

Section 711 provides that 'the jurisdiction vested in the courts of the United States, in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several states-- First, of all crimes and offences cognizable under the authority of the United States. * * * '

Section 2145, which is found under the title 'Indians,' provides as follows: 'Except as to crimes, the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. ' The punishment of the crime of murder is nowhere expressly provided for in said title, and it follows that where that crime is committed in the Indian country it is within the exclusive jurisdiction of the United States. The question, what territory is included within the term 'Indian country,' as employed in section 2145 above quoted? is one not free from difficulty. The act entitled 'An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the borders,' approved June 3, 1834, (4 St.at Large, 729,) provides that 'all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas; also that part of the United States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country.'

The Ute reservation of Colorado is not within the territory here described. It was not at the time of the passage of that act a part of the United States, but was subsequently acquired from Mexico. It was originally embraced within the territorial limits of the territory of Utah. 9 St. 453.

By section 7 of the act of congress of February 27, 1851, (9 St 587,) it is provided 'that all the laws now in force regulating trade and intercourse with the Indian tribes, or such provisions of the same as may be applicable, shall be, and the same are hereby, extended over the Indian tribes in the territories of New Mexico and Utah. ' Whether the effect of this provision was to make New Mexico and Utah, including what is now the Ute reservation of Colorado, Indian country, is to my mind quite doubtful. It is, however, not necessary to decide that question, since it is perfectly clear that by virtue of the treaty-making power the United States had, prior to the organization and admission into the Union of the state of Colorado, brought the Ute reservation above named within their sole and exclusive jurisdiction, and no doubt whatever is entertained that the federal courts had, prior to the admission of said state of Colorado, complete jurisdiction to hear, try, and determine all cases of murder committed within the limits of that reservation. The determination of this case must turn upon the question whether the United States were ousted of their jurisdiction over the said reservation by the provisions of the act entitled 'An act to enable the people of Colorado to form a constitution and state government,' etc., approved March 3, 1875, (18 St. 474.) The decision of this question will require the consideration and construction of the said enabling act, in connection with the provisions of...