V. People v. Carmen, Cr. 5286

• Decision Date: 01 February 1954
• Docket Number: Cr. 5286
• Citation: 265 P.2d 900
• Court: California Supreme Court
• Parties: PEOPLE v. CARMEN. *

Page 900

265 P.2d 900

PEOPLE v. CARMEN. ^*

Cr. 5286.

Supreme Court of California, In Bank.

Feb. 1, 1954.

Rehearing Granted Feb. 24, 1954.

Mason A. Bailey, Madera, and Leonard J. Bloom, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Winslow Christian, Wallace G. Colthurst and Arlo E. Smith, Deputy Attys. Gen., Andrew J. Eyman, Sp. Deputy Atty. Gen., and George R McClenahan, Deputy Dist. Atty., San Diego, for respondent.

CARTER, Justice.

Defendant, Rayna Tom Carmen, pleaded not guilty and not guilty by reason of insanity to a charge of murder. One jury found him guilty of first degree murder, and another jury found him sane. The death penalty was imposed. The case is here on automatic appeal. Pen.Code, § 1239(b).

Defendant was previously tried on the same charge and found guilty of having murdered one Wilbur Dan McSwain on April 22, 1950; he was also charged in a second count with, and found guilty of, assault with intent to commit the murder of Alvin McSwain. After an appeal to this court, the murder conviction was reversed because of the failure, on the part of the trial court, to give an instruction on manslaughter, and because erroneous instructions on first degree murder were given. The judgment of conviction on the second count was affirmed. People v. Carmen, 36 Cal.2d 768, 228 P.2d 281.

On this appeal, additional evidence in the form of a stipulation was produced for the purpose of determining whether or not the state courts had jurisdiction to try defendant for the crime of murder. By stipulation it was shown that the deceased, Wilbur Dan McSwain, was an Indian; that the defendant, Rayna Tom Carmen, is an Indian, and that the crime was committed on the Maggie Jim Allotment which was comprised of lands held in trust by the United States Government for a twenty-five year period, Federal Register, November, 14, 1944, 9 F.R. 1369, Executive Order No. 9500, U.S.Code Cong.Service 1944, p. 1539.

On behalf of defendant, it is contended that the state court was without jurisdiction over him in that exclusive jurisdiction in such cases is vested in the United States and its courts by reason of sections 1151, 1152, 1153 and 3242 of the United States Code Annotated, as amended May 24, 1949. U.S.C.A., Title 18.

Section 1151 provides as follows: 'Except as otherwise provided in sections 1154 and 1156 of this title (those sections have reference to sales of liquor to Indians and the definition of the term 'Indian country' as it relates to the liquor laws), the term 'Indian country,' as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.' Emphasis added; June 25, 1948, c. 645, 62 Stat. 757, amended May 24, 1949, c. 139, § 25, 63 Stat. 94.

Section 1152 provides: 'Laws governing. Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses 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.

'This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.' June 25, 1948, c. 645, 62 Stat. 757.

Section 1153 provides in pertinent part: 'Offenses committed within Indian country. Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.' (The second paragraph of this section relates to rape; the third paragraph to burglary. Both provide that the crimes shall be defined as provided by the laws of the state in which they were committed. Burglary is to be punished in accordance with the laws of the state in which it is committed.) June 25, 1948, c. 645, 62 Stat. 758, amended May 24, 1949, c. 139, § 26, 63 Stat. 94.

Section 3242 provides that 'All Indians committing any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny on and within the Indian country, shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' June 25, 1948, c. 645, 62 Stat. 827, amended May 24, 1949, c. 139, § 51, 63 Stat. 96.

We have concluded that defendant's position must be sustained. The sections define 'Indian country' as including an Indian allotment, the Indian title to which has not been extinguished and as being within the exclusive jurisdiction of the United States and that crimes committed by Indians against other Indians shall be punished under the general laws of the United States.

The People argue that defendant was a citizen of the United States and of this state and for that reason, our courts have jurisdiction. That contention was answered adversely to the People in United States v. Nice, 241 U.S. 591, at page 598, 36 S.Ct. 696, at page 698, 60 L.Ed. 1192, wherein it was said: 'Citizenship is not incompatible with * * * continued guardianship, and so may be conferred without completely emancipating the indians, or placing them beyond the reach of congressional regulations adopted for their protection.' In Hallowell v. United States, 221 U.S. 317, 324, 31 S.Ct. 587, 589, 55 L.Ed. 750, the defendant was an Omaha Indian residing in Nebraska. He was a citizen of the United States and of the state in which he resided. He contended at the trial that the state court had jurisdiction. The Supreme Court held that the federal courts had jurisdiction and said: '* * * (T)he United States had not parted with the title to the lands, but still held them in trust for the Indians. In that situation its power to make rules and regulations respecting such territory was ample.'

It is contended by the People that this state had jurisdiction in that it had never ceded jurisdiction over the land on which the crime occurred. In United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410, it was held that the principle of exclusive federal jurisdiction over crimes involving Indians on Indian reservations is not based on a cession of such jurisdiction by the states to the federal government but is based on the constitutional authority of the United States to deal with the Indians. It is argued by the People that whether the defendant was a ward of the United States, as held in United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228, was a question of fact which should have been raised at one of defendant's two trials, and that the burden was on defendant to prove such wardship, or jurisdiction, as a...