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We deem it settled beyond controversy, although at the date of the commission of until Congress shall otherwise provide, that the offense Comanche county had not been circuit courts of the United States have no organized, but was attached for judicial purpower to issue a writ of mandamus in an poses to Canadian county. original action brought for the purpose of Territories—jurisdiction over land not open

to settlement. securing relief by the writ, and this result is not changed because the relief sought of Comanche county, Oklahoma, had become

5. Land now embraced within the limits concerns an alleged right secured by the part of that territory on August 4, 1901, so Constitution of the United States.

as to make a murder committed therein on It follows that the circuit court should that date an offense against the territorial have dismissed the case for want of juris- rather than the Federal statutes, although diction instead of determining it upon the the land had not then been opened for setmerits. The judgment dismissing the peti

tlement. tion is therefore modified so as to show that Habeas corpus-grounds-jurisdiction below. the case was dismissed for want of jurisdic

6. Compelling the accused to stand up tion, and, as thus modified, the judgment is and walk before the jury, and stationing

the jury during a recess so as to observe affirmed.

his size and walk, even if contrary to the

5th Amendment to the Federal Constitution, IN THE MATTER OF GEORGE MORAN, so as to justify relief by habeas corpus.

do not affect the jurisdiction of the court Petitioner.

[No. 8, Original.] Habeas corpus-grounds-jurisdiction below.

1. The failure to specify a building in the order of the supreme court of the terri- | Argued October 15, 1906. Decided November tory of Oklahoma fixing Lawton as the

5, 1906. place where the district court should be held

RIGINAL PETITION for habeas corpus in and for the county of Comanche, there OR being at the time of making the order and

and certiorari brought by a person imat the time of trial no county or court prisoned on a conviction for murder. Rule buildings in such county, did not go to the discharged. Writs denied. jurisdiction of such district court so as to The facts are stated in the opinion. justify relief by habeas corpus in favor of a

Messrs. Finis E. Riddle and William I. person convicted of crime therein who makes

Cruce for petitioner. no showing of any opportunities lost be

Messrs. Don C. Smith and W. 0. Cromwell cause no building was named.

for respondent. Habeas corpus-grounds-selection of grand jurors.

2. A person imprisoned under a convic- Mr. Justice Holmes delivered the opinion tion in an Oklahoma court is not entitled to of the court: his release on habeas corpus, under U. S. This is a petition for a writ of habeas Rev. Stat. $ 753, U. S. Comp. Stat. 1901, p. corpus and a writ of certiorari, brought by 592, because the grand jurors were sum

a person imprisoned on a conviction for moned from the body of the county, which resulted in the selection as such jurors of murder, alleging that the judgment under persons who were not electors nor residents which he is held is void. A rule to show of the territory, since the Federal Constitu- cause was issued and the case was heard on tion does not control the method of selec- the petition

and answer.

The various tion, and if any laws have been violated by grounds upon which the petition is supthis method they are territorial enactments, ported are alleged to go to the jurisdiction which are not laws of the United States. of the trial court. Ex parte Harding, 120 Habeas corpus-grounds-jurisdiction below. U. S. 782, 30 L. ed. 824, 7 Sup. Ct. Rep. 780.

3. Disobeying the law governing the se. See New v. Oklahoma, 195 Ū. S. 252, 49 L. lection of grand jurors does not affect the ed. 182, 25 Sup. Ct. Rep. 68. A writ of jurisdiction of the court so as to justify the habeas corpus for the same causes was heard release by habeas corpus of a person con. victed under an indictment found by such by the circuit court of appeals and disjurors.

charged. Ex parte Moran, 144 Fed. 594. Venue of criminal trial.

The judgment also was affirmed by the su4. The trial in Comanche county, Okla- preme court of the territory in which the homa, of an offense committed within ter- petitioner was tried. 14 Okla. 544, 78 Pac. ritory which, at the time of trial, had been ill. organized as such county, with a term of court fixed for it by order of the territorial court for Comanche county in the territory

The petitioner was tried in the district supreme court, satisfies the requirements of of Oklahoma. The first ground now relied the organic act of May 2, 1890, chap. 182, f 10, that crimes shall be tried in the upon is that the court was not duly organcounty to which territory not embraced in ized under the act of Congress requiring the any organized county "shall be attached," I supreme court to define the judicial districts,

and to fix the times and places at each coun- | the first to be considered by this court, we ty seat where the district court shall be do not mean to give any countenance to the held. The order of the supreme court went notion that, if the law was disobeyed, it no further in the way of fixing the place affected the jurisdiction of the court. Ex than to specify Lawton for the county of parte Harding, 120 U. S. 782, 30 L. ed. 824, Comanche. This order was made on Janu- 7 Sup. Ct. Rep. 780; Re Wilson, 140 U. S. ary 15, 1902, about six months after the 575, 35 L. ed. 513, 11 Sup. Ct. Rep. 870. land, which had been Indian territory, was The third ground on which the jurisdiction opened for settlement and the county crew of the trial court is denied is that, on ated. At that time and at the time of the August 4, 1901, the date of the commission trial there were no county or court buildings of the crime, the place was within territory in the county. The order of the supreme not embraced in any organized county, and court was as precise as the circumstances was attached for judicial purposes to permitted it to be, and the failure to specify Canadian county. By the Oklahoma organic a building did not go to the jurisdiction of act, May 2, 1890, chap. 182, $ 9 (26 Stat. at the trial court. There is no pretense that L. 85, 86), this is provided for, and by $ 10 the petitioner lost any opportunities by rea- such offenses shall be tried in the county to son of no building being named.

which the territory "shall be attached.” It The next ground argued is that the laws is argued that there had been no law passed of the territory were not followed in the changing the place of trial or affecting the selection of the grand jury, because the per-order of the supreme court attaching the sons selected were not electors of the terri- territory to Canadian county. But the very tory, and some of them were nonresidents, words quoted from § 10 look to the state of with other subordinate matters. The order things at the time of trial. At that time for the summons stated the reason, which Comanche county had been organized, and a was that there had been no election held in term of court fixed for it by the order of the the county, and there were no names of supreme court dated January 15, 1902. The jurors in the jury box; whereupon the pre- meaning of this order, so far as the power siding judge ordered the sheriff to summon of the supreme court went, is plain. The twenty persons from the body of the county. statute gave the petitioner no vested right We have heard no answer to the material to be tried in Canadian county, and his trial portion of the reasoning of the circuit court | in Comanche county conformed to its intent. of appeals upon this point. If the legisla- See Post v. United States, 161 U. S. 583, 40 ture of Oklahoma had prescribed the method L. ed. 816, 16 Sup. Ct. Rep. 611. of selection followed, that method would The fourth ground is that, as the crime not have violated the Constitution or any was committed on August 4, 1901, two days law or treaty of the United States. If it before the opening of the land for settledid prescribe a different one, a departure ment, the place was still under the exclusive from that was a violation of the territorial jurisdiction of the United States, and thereenactment alone. The acts of the legisla-fore the crime was punishable under Rev. ture of Oklahoma are not laws of the United Stat. § 5339, U. S. Comp. Stat, 1901, p. 3627, States within the meaning of Rev. Stat. alone. The order of the President with re§ 753, U. S. Comp. Stat. 1901, p. 592. If gard to the conditions of settlement and any laws have been violated it is the latter entry are referred to as confirming the arone.f Therefore the petitioner is not entitled gument. But those orders were intended to release on this ground under Rev. Stat. merely to carry out the acts of Congress § 753. The 5th Amendment, requiring the governing the matter. There is no doubt presentment or indictment of a grand jury, that Congress was exercising control so far does not take up unto itself the local law as settlement was concerned. But there is as to how the grand jury should be made equally little doubt that the title to the up, and raise the latter to a constitutional territory had passed, that it had become requirement. See Rawlins v. Georgia, 201 part of the territory of Oklahoma, and, as U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560. such, no longer under the exclusive jurisdicIt is unnecessary to consider whether the tion of the United States within Rev. Stat. judge went beyond his powers under the $ 5339. Act of May 2, 1890, chap. 182, 88 circumstances. See Clawson v.

v. United 1, 4, 6, 26 Stat. at L. 81; act of June 6, 1900, States, 114 U. S. 477, 29 L. ed. 179, 5 Sup. Ct. chap. 813, 31 Stat. at L. 677; act of March 3, Rep. 949. But it is proper to add that while 1901, chap. 846, 31 Stat. at L. 1093. the reason which we have given is logically Bates v. Clark, 95 U. S. 204, 24 L. ed. 471;

Buster v. Wright, 68 C. C. A. 505, 135 Fed. [Obviously the court here intended to convey the idea that, if any law has been 947, 952; Ex parte Moran, 144 Fed. 594, violated, the territorial enactment is the 602. Therefore the application of the terrione.-Ed.]

torial statute was not excluded and the

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murder was a violation of the territorial | Rose, and Wilmer B. Comstock for defendlaw.

ant in error. Finally it is contended that the petitioner was compelled to be a witness against him- Mr. Justice Holmes delivered the opinion self, contrary to the 5th Amendment, be of the court: cause he was compelled to stand up and This is a bill to reform a policy and to rewalk before the jury, and because, during a cover upon it as reformed. An action at recess, the jury was stationed so as to ob- law upon the same instrument, between the serve his size and walk. If this was an same parties, has come before this court error, as to which we express no opinion, it heretofore. 183 U. S. 308, 46 L. ed. 213, 22 did not go to the jurisdiction of the court. Sup. Ct. Rep. 133. In that case it was held Felts v. Murphy, 201 U. S. 123, 50 L. ed. that the plaintiff could not recover. The 689, 26 Sup. Ct. Rep. 366.

question before us at the present time is Rule discharged. Writs denied.

whether the supreme court of Nebraska failed to give full faith and credit to the judgment in the former case by holding that

it was no bar to the relief now sought. NORTHERN ASSURANCE COMPANY OF LONDON, Plff. in Err.,

(Neb.) 102 N. W. 246.

The policy was conditioned to be void in GRAND VIEW BUILDING ASSOCIATION. case of other insurance, unless otherwise

provided by agreement indorsed or added; Judgment-full faith and credit.

and it stated, in substance, that no officer 1. A judgment of the Supreme Court of or agent had power to waive the condition the United States to the effect that a policy except by such indorsement or addition. of fire insurance could not be recovered upon There was other insurance and there was no as it stood nor be helped out by any doctrine indorsement. The plaintiff alleged a waiver of the common law is not denied full faith and credit by an adjudication of a state and an estoppel. The jury found that the court that such judgment is not a bar to a agent who issued the policy had been insuit in equity to reform the policy so that formed on behalf of the insured and knew of it will express consent to concurrent in the outstanding insurance. But this court surance, and to recover upon such policy as held that the attempt to establish a waiver reformed.

was an attempt to contradict the very Election of remedies.

words of the written contract, which gave 2. The prosecution of an action at law notice that the condition was insisted upon upon a policy of fire insurance to final judg, 'and could be got rid of in only one way, ment denying recovery, upon the ground / which no agent had power to change. The that the policy could neither be recovered upon as it stood nor be helped out by any judgment based upon this decision is what doctrine of the common law, is not an elec- is now relied upon as a bar. Metcalf v. tion which bars a suit in equity to reform Watertown, 153 U. S. 671, 676, 38 L. ed. the policy so that it will express consent 861, 863, 14 Sup. Ct. Rep. 947; Hancock Nat. to concurrent insurance, and to recover up Bank v. Farnum, 176 U. S. 640, 645, 44 L. on such policy as reformed.*

ed. 619, 621, 20 Sup. Ct. Rep. 506.

Whether sufficient grounds were shown for [No. 40.]

the relief which was granted is a matter Argued October 18, 19, 1906. Decided No with which we have nothing to do. But the

state court was right in its answer to the vember 5, 1906.

question before us. The former decision, of IN N ERROR to the Supreme Court of the course, is not an adjudication that the con

State of Nebraska to review a decree tract cannot be reformed. It was rendered which affirmed a decree of the District Court in an action at law, and only decided that of Lancaster County in that state, reforming the contract could not be recovered upon as a policy of fire insurance so as to express it stood, or be helped out by any doctrine of consent to concurrent insurance, and en- | the common law. If it were to be a bar it forcing the policy as so reformed, notwith-would be so, not on the ground of the adstanding a prior judgment of the Supreme judication as such, but on the ground of Court of the United States in an action at election, expressed by the form in which the law denying any recovery on the policy. plaintiff saw fit to sue. As an adjudication Affirmed.

it simply establishes one of the propositions See same case below (Neb.) 102 N. W. 246. on which the plaintiff relies,-that it cannot The facts are stated in the opinion. recover upon the contract as it stands. T'he

Messrs. Charles J. Greene and Ralph W. supposed election is the source of the effect Breckenridge for plaintiff in error.

attributed to the judgment. If that deMessrs. Joseph R. Webster, Halleck F. ( pended on matter in pais it might be a ques*Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Election of Remedies, $$ 14, 15.

tion, at least, as was argued, whether such a remedy, as had been laid down by the sua case fell within either U. S. Const. art. 4, preme court of Nebraska and the circuit g 1, or Rev. Stat. § 905, U. S. Comp. Stat. court of appeals for the circuit. Home F. 1901, p. 677. It may be doubted whether the Ins. Co. v. Wood, 50 Neb. 381, 386, 69 N. W. election must not at least necessarily appear 941; Fireman's Fund Ins. Co. v. Norwood, on the face of the record as matter of law in 16 C. C. A. 136, 32 U. S. App. 490, 69 Fed. 71. order to give the judgment a standing under so long as those decisions stood the plainRev. Stat. $ 905.

tiff had no choice. It could not, or at least We pass such doubts, because we are of did not need to, demand reformation, if a opinion that, however the election be stated, court of law could effect the same result. it is not made out. The plaintiff in the for- It did demand the result, and showed by its mer action expressed on the record its re- pleadings that the path which it did choose liance upon the facts upon which it now was chosen simply because it was supposed relies. It did not demand a judgment with to be an open way. Snow v. Alley, 156 out regard to them and put them on one Mass. 193, 195, 30 N. E. 691. side, as was done in Washburn v. Great A question argued as to the obligation of Western Ins. Co. 114 Mass. 175, where this the contract having been impaired by a statdistinction was stated by Chief Justice ute as construed was not taken below, and Gray. Its choice of law was not an elec- is not open here. tion, but an hypothesis. It expressed the Decree affirmed. supposition that law was competent to give

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DANIEL RED BIRD et al., Citizens of the Cherokee enrolment-rights of intermarried Cherokee Nation by Blood, Appts.,

whites.

5. White persons who intermarried with UNITED STATES. (No. 125.)

Cherokees after November 1, 1875, when a

Cherokee law became effective which deCHEROKEE NATION, Appt.,

clared that such persons by intermarriage

acquired no right of soil or interest in the V.

vested funds of the Cherokee Nation, are UNITED STATES. (No. 126.)

not entitied to share in the allotment of the

lands or in the distribution of any of the FRANCIS B. FITE et al., Intermarried funds belonging to such Nation, and are not White Persons, Claiming to be Entitled to entitled to be enrolled for that purpose. Citizenship in the Cherokee Nation, Appts., Indians-rights of intermarried whites.

6. The ratification by the Cherokee Na

tion of the act of Congress of July 1, 1902 UNITED STATES. (No. 127.)

(32 Stat. at L. 716, chap. 1375), which in § PERSONS CLAIMING RIGHTS IN THE ried since December 16, 1895, shall be en

26 declares that no white person intermarCHEROKEE NATION BY INTERMAR- titled to enrolment or to participate in the RIAGE, Appts.,

distribution of the tribal property of the

Cherokee Nation, does not amount to a conUNITED STATES. (No. 128.)

cession of property rights by the Indians to

all who intermarried prior to that date. Cherokee enrolment-rights of intermarried Cherokee enrolment-rights of intermarried whites.

whites. 1. White persons residing in the Chero- 7. White persons who have intermarried kee Nation who became Cherokee citizens un with Delaware or Shawnee citizens of the der the Cherokee laws by intermarriage Cherokee Nation, not thereby becoming citiwith Cherokees by blood prior to November zens themselves under the Cherokee laws, 1, 1875, when a Cherokee law became ef- have no part or share in the Cherokee propfective which declared that such persons by erty, and are not entitled to participate in intermarriage acquired no rights of soil or the allotment of the lands or in the distribuinterest in the vested funds of the Nation, tion of the funds belonging to such Nation, are equally interested, and have per and are not entitled to be enrolled for that capita rights with Cherokee Indians by purpose. blood in the lands constituting the public Cherokee enrolment-rights of intermarried domain of the Cherokee Nation, and are en- whites married out and abandoned titled to be enrolled for that purpose.

whites. Cherokee enrolment-rights of intermarried 8. White persons who intermarried with whites.

Cherokees by blood, and, after the death of 2. No rights, interest, or share in any the Cherokee wife or husband, intermarried funds belonging to the Cherokee Nation, ex

not of Cherokee blood, cept where such funds were derived by lease, and white

who, having married sale, or otherwise from the lands of the Cherokee women, abandoned them, have Cherokee Nation conveyed to it by the no part or share in the Cherokee propUnited States by the patent of December, erty, and are not entitled to share in the 1838, were acquired by white persons resid- allotments of the lands or in the distribuing in the Cherokee Nation who becametion of any of the funds belonging to the Cherokee citizens under the Cherokee laws Cherokee Nation, or to be enrolled for that by intermarriage with Cherokees by blood purpose, although the proceedings in the naprior to November 1, 1875, when a Cherokee ture of office found authorized by the Cherolaw became effective which declared that kee laws have not been instituted to derrive such persons by intermarriage acquired no rights of soil or interest in the vested funds them of the rights and privileges acquired of the Nation.

by intermarriage. Statutes-effect of compilation. 3. The original Cherokee law as duly

[Nos. 125, 126, 127, 128.] passed and approved must prevail as against omissions in subsequent compilations, where the acts providing for such compilations did | Argued February 19, 20, 1906. Decided No

vember 5, 1906. not declare that they should be effective as laws of the Cherokee Nation. Indians-rights of adopted whites.

PPEALS from the Court of Claims to

A 4.

review a decree which adjudged that onrights, were alone within the purview of the ly such white persons as intermarried with amendment made in 1866 to the 5th section Cherokees by blood prior to November 1, of the Cherokee Constitution of 1839, relating to eligibility to a seat in the National 1875, were entitled to any share in the CheroCouncil, by which "whites legally members kee property, or to be enrolled for that purof the Nation by adoption” were declared pose. Affirmed. to be citizens of the Cherokee Nation.

See same case below, 40 Ct. Cl. 411.

with persons

men

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