United States v. Jewett

• Decision Date: 03 May 1971
• Docket Number: No. 20473.,20473.
• Parties: UNITED STATES of America, Appellee, v. William JEWETT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

438 F.2d 495 (1971)

UNITED STATES of America, Appellee, v. William JEWETT, Appellant.

No. 20473.

United States Court of Appeals, Eighth Circuit.

February 18, 1971.

Certiorari Denied May 3, 1971.

William D. Kenyon, Sioux Falls, S. D., for appellant.

R. D. Hurd, Asst. U. S. Atty., Sioux Falls, S. D., William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee.

Before Mr. Justice CLARK,^* and VAN OOSTERHOUT and GIBSON, Circuit Judges

Certiorari Denied May 3, 1971. See 91 S.Ct. 1640.

VAN OOSTERHOUT, Circuit Judge.

Defendant William Jewett has taken this timely appeal from judgment of conviction entered upon a jury verdict of guilty on an indictment charging defendant with second degree murder in violation of 18 U.S.C.A. § 1153.

Defendant attacks the validity of his conviction on two grounds: (1) The court erred in admitting the testimony of Mr. Ashton, realty officer of the Cheyenne River Agency, to the effect that his record showed Indian title had not been extinguished to the land on which the crime was committed over defendant's best evidence objection. (2) The court erred in giving an instruction to the jury reading:

"If you find that the defendant was legally insane at the time the criminal act he is charged with occurred, but you find beyond a reasonable doubt that his mental disability was the result of his voluntarily drinking alcoholic beverages, and if you further find beyond a reasonable doubt that he was aware of the effects of his drinking alcoholic beverages, then the defendant\'s mental disability does not relieve him of criminal responsibility."

We find the errors asserted lack merit and affirm the conviction.

Eighteen U.S.C.A. § 1153 gives federal courts jurisdiction over certain major crimes including murder committed by an Indian in Indian country. To establish jurisdiction, the burden is on the Government to prove that the major crime was committed by an Indian in Indian country. It is stipulated that defendant is an Indian. Defendant contends the Government has failed to establish by competent evidence that the murder was committed in Indian country. The definition of Indian country here pertinent as stated in 18 U.S.C.A. § 1151(c) includes, "all Indian allotments, the Indian titles to which have not been extinguished * * *."

The murder for which the defendant was prosecuted took place at the Noisy Hawk residence which is located on the portion of the Cheyenne River Indian Reservation which has been allotted to Indians but was open to white settlement. Thus jurisdiction of the offense charged exists only if the Indian title to the Noisy Hawk residence has not been extinguished.

Mr. Ashton, realty officer of the Cheyenne River Indian Reservation Agency of the Bureau of Indian Affairs, testified that records of transfers of Indian lands from the time of the trust patent were kept in his office; that maintenance of such records was necessary for the purpose of carrying out the functions of the office; that each allotment was assigned a tract number and that a card record was kept with respect to the title to each tract. The number assigned to the tract occupied by Noisy Hawk was 2298. The record shows the trust patent and a number of transfers to Indians through inheritance. The last entry is a deed from the Indian owners to the United States in trust for the Cheyenne River Sioux Tribe, approved by the Secretary of Interior October 4, 1940. A certified copy of the deed was produced and received in evidence. Mr. Ashton testified that he had made a search of the records of his office and that it revealed no subsequent transfers of the title and that the Indian title had never been extinguished.

Mr. Ashton further testified that he confirmed his finding that the trust status of the Noisy Hawk tract continued to exist by telephone with the principal office of records at Aberdeen. The consent of the Secretary of Interior is necessary for a conveyance of trust land to a non-Indian. The agency office handles through the Secretary of Interior all disposals of trust lands and keeps a record thereof. Mr. Ashton as realty officer makes reports of alienated land to State authorities so that such land can be taxed. Tract 2298 has never been taxed.

Defendant objected to the foregoing testimony upon the basis of best evidence rule. The admission of secondary evidence is within the broad discretion of the trial judge. United States v. Covello, 2 Cir., 410 F.2d 536, 543. We find no abuse of discretion.

Moreover, it is extremely doubtful whether the evidence just discussed falls within the best evidence rule. The evidence shows that Mr. Ashton's office was required to and did keep track of title to Indian trust land for the purpose of performing the required functions of the agency office. It is reasonably certain that accurate records were kept on the tract sheets as to the title status of Indian land.

To establish the fact that there is no record as to a particular matter or thing, parol evidence may be given. The proof may be given by any qualified person as well as the custodian. Aiuppa v. United States, 10 Cir., 393 F.2d 597; Jackson v. United States, 5 Cir., 250 F. 2d 897, 901. The defendant has failed to demonstrate that any prejudicial error was committed in receiving the evidence that Indian title to the Noisy Hawk tract had never been divested. Substantial evidentiary support exists for the court's determination that the crime occurred in Indian country and hence jurisdiction is established.

We now reach the second asserted error which relates to the voluntary intoxication instruction quoted at point (2). We shall first summarize the background facts.

On the evening of December 5, 1969, defendant went to the Noisy Hawk home. With no provocation, he ordered everyone out of the house. All left except seventy-seven year old John Crow Eagle, who was sleeping in the bedroom. Crow Eagle died as a result of a severe beating inflicted by defendant. The defendant was arrested later that evening by four officers who testified that they smelled liquor on his breath; that defendant staggered; that he was glassy eyed, and that his speech was slurred.

Defendant's only defense at the trial was that he was insane at the time of the crime and hence not legally responsibile for his acts.

Defendant is a thirty-year old Indian with an IQ of 70. In 1961 he was struck on the head with an axe which penetrated his brain. He received extensive treatment for such injury. He spent three and one-half years at the South Dakota Mental Hospital at Yankton between 1964 and 1969. He was discharged as sane in April 1969.

Dr. Behan, Superintendent of the Mental Hospital, a qualified psychiatrist, called as a witness by defendant, testified that defendant is not insane except when he has a psychotic episode induced by drinking alcoholic beverages. In response to a question as to defendant's ability to know the difference between right and wrong at the time of the...