Summary
Rehearing granted by the Supreme Court
Summary of this case from Acosta v. County of San DiegoOpinion
Cr. 5286
2-1-1954
PEOPLE v. CARMEN. *
Mason A. Bailey, Madera, and Leonard J. Bloom, San Francisco, for appellant. McClenahan, Deputy Dist. Atty., San Diego, for respondent.
PEOPLE
v.
CARMEN. *
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 defense. In United States v. Rogers, D.C., 23 F. 658, it was held that the matter of jurisdiction in a criminal proceeding is never presumed; that it must always be proved and is never waived as a defense. It was further held there that the question of jurisdiction can be raised at any stage of the proceeding. See, also, United States v. Anderson, D.C., 60 F.Supp. 649, 650, holding that if the court is without jurisdiction of the subject matter, its proceeding is a nullity.) 'Even the consent of the accused can not confer jurisdiction, and it is an issue that can be made at any stage of the proceedings, * * *.' In Costa v. Banta (a civil case), 98 Cal.App.2d 181, 182, 219 P.2d 478, 479, it was held that 'Although the jurisdiction of that court was not questioned during the trial, it is well established that questions of jurisdiction are never waived and may be raised for the first time on appeal.' In State v. Pepion, 1951, 125 Mont. 13, 230 P.2d 961, the defendant, an Indian, committed larceny within the limits of an Indian reservation. The court held that he was subject to applicable federal laws and was under the exclusive jurisdiction of the United States courts. It was there held that the state district court was without jurisdiction and that its purported judgment was a nullity.
The People contend that section 1153 extended the definition of 'Indian country' to cover Indian allotments for the first time in 1948 and that in order to vest exclusive jurisdiction in the United States (section 1151) such Indian allottees must have had an 'unextinguished Indian title' to the land. By this, it is argued, is meant that the Indians holding under such an allotment must have had an 'uninterrupted use and occupancy or to (sic) land which comprises a statutorily recognized Indian reservation.' The crime occurred in 1950, and a complete answer to this argument is that the sections under consideration do not so provide. Nothing is to be found therein providing that Indian allotments must have once been part of an Indian reservation. The People contend that the sections were amended to cover Indian allotments after the decision in United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676, wherein it was held that land once part of an Indian reservation did not lose its character as Indian Country by reason of a subsequent allotment to Indians. It was there held: 'But, meanwhile, the lands remained Indian lands, set apart for Indians under governmental care; and we are unable to find ground for the conclusion that they became other than Indian country through the distribution into separate holdings, the government retaining control.' It would appear that the Pelican decision adds nothing to the People's argument and serves merely to establish that the statute was amended so as to cover, specifically, Indian allotments. Tooisgah v. United States, 10 Cir., 186 F.2d 93, 99, relied upon by the People is not in point here. That case involved the murder of an Indian by an Indian in 1942. At that time section 1151 did not include Indian allotments within the definition of Indian country. The court there said: 'But, judging federal jurisdiction here under the words of the statute when the offense was committed, we are now constrained to hold that when the reservation was dissolved and tribal government broken up, the allotted lands lost their character as lands 'within any Indian reservation'.' The court there noted that it was not alleged that either Indian involved occupied the status of an allottee of lands the title to which was held in trust by the United States and that federal jurisdiction was not invoked or sought to be sustained under the provisions of the General Allotment Act.
It is next contended that the United States cannot claim exclusive jurisdiction over crimes committed by Indians in Indian country and that the case of United States v. Kagama, supra, 118 U.S. 375, 6 S.Ct. 1109, with its wardship theory, is obsolete. From this it is argued that because Indians are now citizens of the United States and of the state in which they reside, U.S.C.A., Tit. 8, § 1401 (formerly Tit. 8, §§ 601, 604); Anderson v. Mathews, 174 Cal. 537, 163 P. 902; Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926, they should be subject to the laws of the state in which they reside. It is said, with merit, that Congress itself has recognized the change in the condition of the California Indian in that it has expressly stated that California has jurisdiction over crimes by Indians in Indian country within the state. Public Law 280 was passed by the First Session of the 83rd Congress, Aug. 15, 1953, 18 U.S.C.A. § 1162, giving to California jurisdiction in such situations. The fact remains, however, that at the time the crime in question was committed Congress had not seen fit to so act.
The last contention made by the People is that this state has concurrent jurisdiction with the United States. Since the statutes in question provide that the United States has exclusive jurisdiction in such a situation, the contention is obviously without merit.
Inasmuch as the Superior Court was without jurisdiction to try defendant for the crime with which he was charged, the judgment of conviction is a nullity and must therefore be reversed with directions to the trial court to dismiss the information against the defendant.
Judgment reversed.
GIBSON, C. J., and SHENK, EDMONDS, TRAYNOR, SCHAUER, and SPENCE, JJ., concur. --------------- * Subsequent opinion 273 P.2d 521.