Opinion
Appeal from a judgment of the Superior Court of Humboldt County, and from an order refusing a new trial.
COUNSEL:
The court erred in admitting the testimony of the defendant's wife, and the error was not cured by his subsequent testimony. ( Pen. Code, sec. 1322.) The defendant being a full-blooded Indian, and the deceased having been the same, the state courts had no jurisdiction of the alleged offense. (State v. McKenney, 18 Nev. 182.)
J. N. Gillett, for Appellant.
Attorney-General Johnson, and G. W. Hunter, for Appellant.
The error in admitting the testimony of the wife of the defendant was cured by his subsequent testimony. (People v. Daniels , 70 Cal. 521; People v. Fenwich , 45 Cal. 287; People v. Marseiler , 70 Cal. 98; People v. Montgomery , 53 Cal. 576; Knowles v. Dow , 22 N.H. 387; Carpenter v. Gardiner , 29 Cal. 160.)
JUDGES: In Bank. Belcher, C. C. Foote, C., and Hayne, C., concurred. Searls, C. J., and Temple, J., concurring.
OPINION
BELCHER, Judge
The defendant was charged with the crime of murder, and convicted of manslaughter. He moved for a new trial, and has appealed from the judgment and order denying his motion.
Defendant is an Indian twenty-nine years of age, and was born and raised in the county of Humboldt. He was accused of killing another Indian named Billy Barlow. At the trial, after several witnesses had been examined to prove the commission of the alleged offense, an Indian woman named Jennie Bill Ketchem was called and sworn as a witness for the prosecution. The defendant objected to her testifying, upon the ground that she was his wife, and therefore, under section 1322 of the Penal Code, incompetent to be a witness against him. In support of the objection, it was proved that some three or four years before the time of the homicide the defendant asked the witness to be his "woman," and she said, "All right." He also asked her father and mother if he might have her for his woman, and they consented. Before that she had lived with another Indian for about four years, but he had left her. She then lived with defendant as his woman, in a cabin built by him for that purpose, until a few weeks before the homicide, when he went away and left her. While they were so living together she had two still-born children. Before leaving he told her he was going to leave her, and afterward told several other parties that he would never live with her any more. Defendant admitted that he made the statements imputed to him, but said he was joking when he made them, and that he intended all the time to return and live with her. It was further proved that what is called the marriage relation among the Indians was formed by a male taking a squaw and living with her, and that he could dissolve the relation whenever he chose to do so by leaving her, and could then take another squaw.
Upon these proofs the court overruled the objection, and the defendant reserved an exception. The witness was then examined and cross-examined, and thereupon the prosecution rested. The defendant then offered himself, and was sworn and examined, as a witness in his own behalf. He admitted that he killed Billy Barlow, and testified to all the facts connected with the killing substantially as his alleged wife had testified to them.
Whether, in view of the fact that they were Indians, the defendant and his [15 P. 354] "woman" should be regarded as husband and wife, within the meaning of those words as used in section 1322 of the Penal Code, is a question which we do not deem it necessary to decide. The question, so far as we are advised, has never before arisen in this state, and upon somewhat similar facts the courts in other states have ruled differently. (See Johnson v. Johnson , 30 Mo. 72; Smith v. Brown, 8 Kan. 610; Wall v. Williamson , 11 Ala. 839. Contra: Roche v. Washington , 19 Ind. 53; State v. Ta-cha-na-tak , 64 N.C. 614.)
If it be conceded that the parties were husband and wife, and that the court therefore erred in overruling the defendant's objection, still the error was rendered harmless and immaterial when the defendant voluntarily became a witness for himself. Under his own testimony he was clearly guilty of manslaughter, if not of murder, and could not therefore have been prejudiced by the ruling. (People v. Montgomery , 53 Cal. 576; People v. Marseiler , 70 Cal. 98; People v. Daniels , 70 Cal. 521.)
The point is also made that the trial court had no jurisdiction of the case, because both the defendant and the party killed were full-blooded Indians; and in support of this position counsel cite State v. McKenney, 18 Nev. 182.
In that case it was claimed that the state courts had "no jurisdiction of crimes committed by one Indian against another when both are members of an organized tribe, having laws for the government of their own internal affairs." And in commencing its opinion the court said: "Let it be remembered that what follows is intended to apply to the case before us, where one Indian belonging to a tribe which is recognized and treated with as such by the government, having its chief and tribal laws, is accused of killing another of the same tribe.. .. It does not refer to a case where an Indian leaves his tribe and joins the whites."
Evidently the law as declared in that case, whatever might be said of the conclusion reached, has no application to this case. Here it does not appear that the defendant is a member of any tribe of Indians, having it chief and tribal laws, nor that the tribe of which his ancestors may have been members was ever recognized or treated with by the government. On the contrary, it appeared that he had lived among the whites for several years. He had his own cabin, and about three acres of land around it, which he cultivated, and on which he raised vegetables. He was asked what he did to support his woman, and replied: "I sheared sheep around, and hunted, and worked for anybody. Herded sheep for anybody."
In our opinion the court below had jurisdiction to try the case, and the judgment and order should be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment is affirmed.
CONCUR
SEARLS; TEMPLE
Searls, C. J., and Temple, J., concurring. We concur in the foregoing opinion, upon the ground that the witness Jennie Bill Ketchem was not shown to be the lawful wife of the prisoner, and was therefore a competent witness.