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in which it was insisted that it was the duty of the court to consider the assignment based on the insufficiency of the complaint, since not to do so would be a denial of due process of law. The rehearing was refused, and the sentence imposed below was increased to three years, six months, and twenty-nine days, on the ground that this was the minimum punishment provided for the offense.
The errors assigned on this writ of error, and the propositions urged at bar to support them, are confined to the assertion that the refusal of the court below to consider the assignment of error concerning the insufficiency of the complaint amounted to a conviction of the accused without informing them of the nature and character of the offense with which they were charged, and was, besides, equivalent to a conviction without due process of law. It is settled that, by virtue of the Bill of Rights enacted by Congress for the Philippine Islands (32 Stat. at L. 691, 692, chap. 1369, U. S. Comp. Stat. Supp. 1905, p. 391), that guaranties equivalent to the due process and equal protection of the law clause of the 14th Amendment, the twice in jeopardy clause of the 5th Amendment, and the substantial guaranties of the 6th Amendment, exclusive of the right to trial by jury, were extended to the Philippine Islands. It is further settled that the guaranties which Congress has extended to the Philippine Islands are to be interpreted as meaning what the like provisions meant at the time when Congress made them applicable to the Philippine Islands. Kepner v. United States, 195 U. S. 100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797. For the purpose, therefore, of passing on the errors assigned, we must test the correctness of the action of the court below by substantially the same criteria which we would apply to a case arising in the United States and controlled by the Bill of Rights expressed in the Amendments to the Constitution of the United States. Turning to the text of the articles of the Philippine Penal Code upon which the prosecution was based, it will be seen that an essential ingredient of the crime of adultery, as therein defined, is knowledge on the part of the man charged of the fact that the woman with whom the adultery was committed was a married woman. Turning to the complaint upon which the prosecution was begun, it will be at once seen that it was deficient, because it did not specify the place where the crime was committed, nor does it expressly state that Vicente Serra, the accused man, knew that Maria Obleno, the woman accused, was, at the time of the guilty cohabitation, a married woman. It results that there were deficiencies in the
complaint which, if raised in any form in the trial court before judgment, would have required the trial court to hold that the complaint was inadequate. But the question for decision is not whether the complaint, which was thus deficient, could have been sustained, in view of the constitutional guaranties, if a challenge as to its sufficiency had been presented in any form to the trial court before final judgment, but whether, when no such challenge was made in the trial court before judgment, a denial of the guaranties of the statutory Bill of Rights arose from the action of the appellate court in refusing to entertain an objection to the sufficiency of the complaint because no such ground was urged in the trial court. Thus reducing the case to the real issue enables us to put out of view a number of decisions of this court referred to in the margin,† as well as many decided cases of state courts referred to in the brief of counsel, because they are irrelevant, since all the former, and, if not all, certainly all of the latter, concern the soundness of objections made in the trial court, by the accused, to the sufficiency of indictments or informations.
In Ex parte Parks, 93 U. S. 18, 23 L. ed. 787, the case was this: The petitioner, Parks, applied to this court for a writ of habeas corpus. He had been convicted and sentenced for the crime of forgery in a district court of the United States. The ground relied upon for release was that the indictment stated no offense. The writ was discharged. Speaking through Mr. Justice Bradley, it was said:
"But the question whether it was or was not a crime within the statute was one which the district court was competent to decide. It was before the court and within its jurisdiction.
"Whether an act charged in an indictment is or is not a crime by the law which the court administers [in this case the statute law of the United States] is a question which has to be met at almost every stage of criminal proceedings; on motions to quash the indictment, on demurrers, on motions to arrest judgment, etc. The court may err, but it has jurisdiction of the question. If it errs, there is no remedy, after final judgment, unless a writ of error lies
†United States v. Cook, 17 Wall. 168, 174, 105 U. S. 611, 26 L. ed. 1135; Dunbar v. 21 L. ed. 538, 539; United States v. Carll, United States, 156 U. S. 185, 39 L. ed. 390, 15 Sup. Ct. Rep. 325; Cochran v. United States, 157 U. S. 286, 39 L. ed. 704, 15 Sup. Ct. Rep. 628; Markham v. United States, 160 U. S. 319, 40 L. ed. 441, 16 Sup. Ct. Rep. 288.
to some superior court, and no such writ | istence of injury was impossible to be conlies in this case."
In United States v. Ball, 163 U. S. 662, 41 L. ed. 300, 16 Sup. Ct. Rep. 1192, an attempt was made to prosecute for the second time one Millard H. Ball, who had been acquitted upon a defective indictment, which had been held bad upon the proceedings in error prosecuted by others, who had been convicted and who had been jointly prosecuted with Ball. Reversing the court below, the plea of autrefois acquit, relied on by Ball, was held good. It was pointed out that the acquittal of Ball upon the defective indictment was not void, and, therefore, the acquittal on such an indictment was a bar. This case was approvingly cited in Kepner v. United States, 195 U. S. 100, 129, 49 L. ed. 114, 124, 24 Sup. Ct. Rep. 797. It being, then, settled that the conviction on a defective indictment is not void, but presents a mere question of error, to be reviewed according to law, the proposition to be decided is this: Did the court below err in holding that it would not consider whether the trial court erred because it had not decided the complaint to be bad, when no question concerning its sufficiency was, either directly or indirectly, made in that court? Thus to understand the proposition is to refute it. For it cannot be that the court below was wrong in refusing to consider whether the trial court erred in a matter which that court was not called upon to consider and did not decide. Undoubtedly, if a judgment of acquittal had resulted, it would have barred a further prosecution, despite the defective indictment. ner v. United States, supra.
ceived, in view of the opinion which the court formed on the facts, in the exerciseof the authority vested in it on that subject. Affirmed.
1. A claim of immunity from suit in the state court under the laws of the United States is in time to sustain a writ of error from the Federal Supreme Court, though first claimed in a petition for rehearing in the state court, if necessarily involved, expressly considered, and decided adversely by
such court.* Courts-exclusive jurisdiction of Federal courts-disputes over Indian allotments. tion of controversies necessarily involving 2. State courts were not given jurisdica determination of the title, and, incidentally, of the right to the possession, of Indian allotments while the same were held in trust by the United States, by the provision of the act of August 15, 1894 (28) Stat. at L. 286, chap. 290), delegating to the Federal circuit courts the power to determine such questions, since the purpose eral control over disputes concerning allotof that act to continue the exclusive FedKep-ments which, prior to that act, could only have been decided by the Secretary of the Interior, is manifested by its provision that a judgment or decree in any such controversy shall be certified by the court to the Secretary of the Interior, and by the provision of the act of February 6, 1901 *(31 Stat. at L. 760, chap. 217), that in such ant as plaintiff and the United States as suits "the parties thereto shall be the claimparty defendant."
But it is said the peculiar powers of the supreme court in the Philippine Islands take this case out of the general rule, since in that court on appeal a trial de novo is had even in a criminal case. But, as pointed out in the Kepner Case, whilst that court on appeal has power to re-examine the law and facts, it does so on the record, and does not retry in the fullest sense. Indeed, when the power of the court below to review the facts is considered, that power, instead of sustaining, refutes the proposition relied on. Thus the proposition is that the court should have reversed the conviction because of the contention as to the insufficiency of the complaint, when no such question had been raised before final judgment in the trial court, and when, as a necessary consequence of the facts found by the court, the testimony offered at the trial without objection or question in any form established every essential ingredient of the crime. In other words, the contention is that reversal should have been ordered for an error not committed, and when the ex
*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1080.
troversy and to its enjoyment. A decree was prayed quieting her alleged title. The others of the defendants, who were alleged to be confederating with Mary Kaly
court of Umatilla county, Oregon, by the filing of a complaint in the name of Agnes Kalyton, suing by her mother, Louise Kalyton, as guardian ad litem. Mary Kalyton and six other persons were made defend-ton, filed a disclaimer of any interest in the ants, one such (Charles Wilkins) being sued as the acting United States Indian agent at the Umatilla reservation.
It was alleged in substance as follows: By virtue of an act of Congress approved March 3, 1885 (23 Stat. at L. 340, chap. 319), and the amendments thereto, a tract of land in the Umatilla Indian reservation was duly allotted on April 21, 1891, to one Joe Kalyton, a member of the Cayuse tribe, residing on said reservation. It was alleged that in or about the year 1893 Joe Kalyton, the allottee, in accordance with the customs of the Cayuse tribe, married Louise an Indian woman of that tribe, and the plaintiff, Agnes Kalyton, was issue of the marriage. In 1898 Joe Kalyton died intestate, leaving the plaintiff as his sole heir, and, under the laws of Oregon and the provisions of the act of Congress referred to, she became entitled to the land allotted to her father, and to the possession and enjoyment thereof. It was charged that Mary Kalyton and four of the defendants, all insolvent, claiming to be the heirs of the deceased, had taken and held possession of the land in question, which had a rental value of $274.75 per annum. It was alleged that one of the defendants, named Glasscock, claimed to have some interest in the land, and was confederating with the other defendants, who were wrongfully alleging themselves to be the heirs of Joe Kalyton, with the object of depriving plaintiff of the use of the land and the enjoyment of the rents and profits thereof. Averring that, under the rules and regulations of the Department of the Interior, in order that plaintiff might obtain the use and enjoyment of the land, it was requisite that her status as legal heir of the deceased should be adjudged by a court of competent jurisdiction, the court was asked to so decree and to perpetually restrain the defendants from interfering with her possession and use of the land. General relief was also prayed.
An answer was filed on behalf of the defendant Mary Kalyton. It was therein
denied in substance that there had been a marriage between Joe and Louise Kalyton, and that the plaintiff was their child, and, averring that Joe Kalyton was a resident and citizen of Oregon and had died intestate, unmarried, and without any lineal descendant, it was alleged that the defendant, as the sister of Joe Kalyton, was his sole heir, and as such was the owner of, and entitled to the possession of, the land in con
lands in controversy. The cause was heard by the court. Deciding that, if Joe Kalyton and Louise Kalyton had been married according to the custom of the Indians of the Cayuse tribe, such marriage would have been void, and that there had been no marriage between the parties, because none had been solemnized in accordance with the laws of the state of Oregon, the plaintiff was held to be an illegitimate child of the deceased, and to have no right, title, or interest in or to the lands in question, and a decree was entered in favor of the defendant Mary Kalyton.
The cause was appealed to the supreme court of the state of Oregon. That court, having found that Joe and Louise Kalyton were married according to the custom and usage of the Indian tribe to which they belonged, and that the plaintiff was the issue of such marriage, held, in view of the legislation of Congress, "that the plaintiff herein was born in lawful wedlock and is the sole heir of Joe Kalyton, deceased, and, as such, entitled to the possession of the real property of which he died seised." The decree of the trial court was, therefore, reversed, and a decree was entered in favor of the appellant in accordance with the opinion. A motion for a rehearing was made and overruled. This motion was based upon the contention that the court had erred in taking jurisdiction of the cause, for the reason that it involved the title and right to possession of public land held in trust by the United States for the benefit of Indians, and hence the United States was a necessary party defendant, and not subject to the jurisdiction of a state court. say the petition for a rehearing was based upon the grounds just stated, although the petition is not in the record, because it is manifest that such was the case from the opinion which the court delivered in refusing the rehearing. 45 Or. 116, 74 rac. 491, 78 Pac. 332. In that opinion the question whether the matter was one of exclusive Federal cognizance was elaborately considbecause a decree as to the right of possesered, and it was decided that it was not, sion would not interfere with the title or trust interest of the United States. And the court declared that, for the purposes of determining its jurisdiction, it was wholly irrelevant to consider whether it would have the power to enforce its decree for the pos session of the allotted land against the officer of the United States in charge of the Indian reservation in case that official
should decline to give effect to the decree as the general allotment act. By that act, for possession. as said in United States v. Rickert, 188 The case was then brought to this court. U. S. 432, 435, 47 L. ed. 532, 535, 23 Sup. Ct. Rep. 478, provision was made for the Messrs. Samuel Herrick, T. G. Hailey, and allotment of lands in severalty to Indians R. J. Slater for plaintiffs in error.
on the various reservations, and for extend
Messrs. William Frye White and John B. ing the protection of the laws of the United Cotton for defendant in error.
Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:
It is contended that we are without jurisdiction because no title, right, or immunity was specially set up or claimed under any Federal statute and denied. But, leaving aside for a moment all other considerations, it is plain that the defendant below set up a claim of immunity from suit in the state court under the laws of the United States, and that the right to the immunity so asserted under an act or acts of Congress was expressly considered and denied by the state court. True it is that the immunity which was asserted was first claimed in a petition for rehearing; but, as the question was raised, was necessarily involved, and was considered and decided adversely by the state court, there is jurisdiction. Leigh v. Green, 193 U. S. 79, 48 L. ed. 623, 24 Sup. Ct. Rep. 390.
At the threshold lies the question raised and decided below relative to the jurisdiction of the state court over the controversy.
Allotments of land in severalty to Indians residing upon the Umatilla reservation, in Oregon, were authorized by the act of Congress of March 3, 1885, chap. 319 (23 Stat. at L. 340), which contained the following provision:
"The President shall cause patents to issue to all persons to whom allotments of lands shall be made under the provisions of this act, which shall be of the legal effect and declared that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs, according to the laws of the state of Oregon, and that, at the expiration of said period, the United States will convey the same by patent to said Indian or his heirs as aforesaid, in fee, discharged of said trust, and free of all charge or encumbrance whatsoever. Provided, That the law of alienation and descent in force in the state of Oregon shall apply thereto after patents have been executed, except as herein otherwise provided." The allotment to Joe Kalyton was made on April 21, 1891. Before that allotment, Congress, on February 8, 1887 (chap. 119, 24 Stat. at L. 388), passed what is known
States and the territories over the Indians. To that end the President was authorized, whenever, in nis opinion, a reservation or any part thereof was advantageous for agriculture and grazing purposes, to cause it, or any part thereof, to be surveyed, or resurveyed, if necessary, and to allot the lands in the reservation in severalty to any Indian located thereon, in certain quantities specified in the statute, the allotments to be made by special agents appointed for that purpose, and by the agents in charge of the special reservations on which the allotments were made. In one of the provisos of the 1st section of the act it was declared
"That where the treaty or act of Congress setting apart such reservation provides for the allotment of lands in severalty in quantities in excess of those herein provided, the President, in making allotments upon such reservation, shall allot the lands to each individual Indian belonging thereon in quantity as specified in such treaty or act."
A provision of like nature to that heretofore excerpted from the act of March 3, 1885, was embodied in § 5 of the general allotment act of 1887, reading as follows (24 Stat. at L. 389, chap. 119):
"Sec. 5. That, upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare, that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs, according to the laws of the state or territory where such land is located, and that, at the expiration of said period, the United States will convey the same by patent to said Indian, or his heirs, as aforesaid, in fee, discharged of said trust, and free of all charge or encumbrance whatsoever: Provided, That the President of the United States may, in any case, in his discretion, extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: Provided, That the law of descent and partition in force in the state or territory where such lands are
situate shall apply thereto after patents | terest in the controversy or in its subjects therefor have been executed and delivered, except as herein otherwise provided."
as entitled it to maintain the suit, the court declared (p. 444, 188 U. S., p. 538, 47 L. ed., p. 483, 23 Sup. Ct. Rep.) that no argument to establish that proposition was necessary. Nor are the principles which were thus announced as to the nature and character of an allotment of Indian lands and the interest of the United States therein as trustee before the expiration of the period for their final disposition in any way affected by the decision in Re Heff, 197 U. S. 488, 49 L. ed. 848, 25 Sup. Ct. Rep. 506, dealing with the subjection of allottee Indians in their per
the state of which they had become citizens. The present suit was commenced in 1899. At that time there was in force an act approved August 15, 1894, chap. 290 (28 Stat. at L. 286), in which it was provided inter alia, as follows (p. 305):
"That all persons who are, in whole or in part, of Indian blood or descent, who are entitled to an allotment of land under any law of Congress, or who claim to be so en
The supervisory power possessed by the United States over allotted lands while the title remains in the United States was pointed out in the opinion in United States v. Rickert, supra, a case which came to this court upon questions certified from a circuit court of appeals. The suit was instituted under the direction of the Attorney General of the United States for the purpose of restraining the collection of taxes alleged to be due the county of Roberts, South Dakota, in respect of certain permanent improve-sonal conduct to the police regulations of ments on, and personal property used in the cultivation of, lands in that county occupied by members of the Sisseton band of Sioux Indians in the state of South Dakota. The lands referred to had been allotted under the provisions of an agreement made in 1889, ratified by an act of Congress in 1891 [26 Stat. at L. 1036, chap. 543], and more particularly under § 5 of the act of February 8, 1887, heretofore referred to. Discussing the interest which the Indians primari-titled to land under any allotment act or ly acquired in the allotted land, it was concluded that "the United States retained the legal title, giving the Indian allottee a paper or writing improperly called a patent, showing that, at a particular time in the future, unless it was extended by the President, he would be entitled to a regular patent conveying the fee. . These lands are held by the United States in execution of its plans relating to the Indians-without any right in the Indians to make contracts in reference to them, or to do more than to occupy and cultivate them-until a regular patent conveying the fee was issued to the several allottees." And the court approvingly quoted the following passage from an opinion of the Attorney General, delivered in 1888, advising that allotments of lands provided for in an act of Congress were exor territorial taxation, empt from state or "that the lands covered by the act are held by the United States for the period of twenty-five years in trust for the Indians, such trust being an agency for the exercise of a Federal power, and therefore outside the province of state or territorial authority."
19 Ops. Atty. Gen. 169. It was decided, in view of the object to be accomplished by allotting Indian lands in severalty, that it was not within the power of a state to tax either the permanent improvements made on allotted lands or the personal property consisting of cattle, horses, and other property of like character which might be furnished to Indians for use upon such land. And, answering a question as to whether the United States had such an in
under any grant made by Congress, or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper circuit court of the United States."
And it was provided that "the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him."
Considering the act of 1894 in Hy-YuTse-Mil-Kin v. Smith, 194 U. S. 413, 48 L. ed. 1045, 24 Sup. Ct. Rep. 681, the court
"Under this statute there is no provision rendering it necessary, in a private litigation between two claimants for an allotment, to
make the United States a party. The statute itself provides that the judgment or defied to the Secretary of the Interior, is to cree of the court, upon being properly certi
have the same effect as if the allotment had
been allowed and approved by the Secretary. This provision assumes that an action may be maintained without the government being made a party, and provides for the filing of a certificate of the judgment and its effect; and the government thereby, in substance and effect, consents to be bound by the judgment, and to issue a patent in accordance therewith.”
The Rickert Case settled that, as the nec