Sephus Wright and Thompson Wade were convicted of murder, and bring error.
On April 7, 1894, the grand jury of the Unite States circuit court of the Fifth circuit, Eastern district of Texas, presented an indictment against Sephus Wright and Thomas Wade, late of the Choctaw Nation, and of Atoka county, Indian Territory. The indictment charged that these parties, on January 9, 1894, 'in Atoka county, in the Choctaw Nation, in the Indian Territory, the same being annexed to and constituting a part of the said Fifth circuit, and annexed to and constituting part of the Eastern district of Texas, for judicial purposes, and being within the jurisdiction of this court, did unlawfully, fraudulently, and feloniously, and with their malice aforethought,' etc., 'murder one Mike Peters,' [158 U.S. 232, 233] etc.; and, after charging the commission of this crime in two counts, it added: 'And he, the said Mike Peter, had theretofore, to wit, on or about the 23d day of December, in the year of our Lord 1893, acted in the legal capacity of a posse and guard for and in behalf of a certain deputy United States marshal, for the Eastern district of Texas, to wit, William Colbert, who was then and there lawfully empowered to employ and deputize him, the said Mike Peters, in said capacity of posse and guard. And the said Mike Peters had theretofore, at divers and sundry times, acted in said capacity of posse and guard appointed, and empowered to so act by certain deputy marshals in and for said district. And by virtue of his said employment in the said capacity of posse and guard by the officers aforesaid, and by virtue of the laws of the said United States, then and there valid and existing, he, the said Mike Peters, was then and there entitled to the protection of the laws of the said United States of America.'
On May 30, 1894, the case came on for trial, when the defendants filed a plea to the jurisdiction of the court and a motion to quash the indictment. The plea to the jurisdiction was as follows:
The motion to quash was based on the following grounds:
The court declined to act upon the plea to the jurisdiction, for the reason that 'it was dependent upon the facts of the case, and would be submitted to the jury as other facts to be proven and controlled by the charge of the court.' Exception was reserved to this ruling. The motion to quash was overruled, and exception was also reserved.
The trial then proceeded, and William Colbert was put upon the stand, and questioned as to whether he was or was not a deputy marshal. Objection was made to this question, upon the ground that oral testimony was inadmissible to show whether a person was or was not a deputy marshal, and Colbert was temporarily withdrawn from the stand, and J. J. Dickerson was sworn. He testified, over objection, that he had been the marshal of the district for the preceding four years; that his commission was at Galveston, and he did not have it with him; that he had appointed Colbert as one of his deputies; that he had given him a commission as such; that he had exacted a bond from some of his deputies, but not from others. Being asked if he knew whether an oath of office had been administered to Colbert as a deputy marshal, he answered that he could not say, but that Colbert had acted as a deputy for a long time, and had been his deputy up to the time that his successor to the office of marshal had quali- [158 U.S. 232, 235] fied. The clerk of the court testified that he had been such since the establishment of the court in 1889; that he kept no record of the oaths administered to deputy marshals, and that none had been ever kept; that the appointment by the marshal of his deputies was placed on file, and the commission issued by the marshal was given to the deputy, so that he might have evidence of his appointment; that he had looked into the proper place where Colbert's appointment should be, but could not find it. Colbert was then recalled, and was allowed, over objection, to testify to his official position. He said that he had been a deputy marshal under Dickerson during his whole term of office, and had been regularly appointed by him, and sworn by Capt. Brooks, the clerk of the district court; that he was unable to produce the commission given him as evidence of his appointment, because he had destroyed it at the expiration of Dickerson's term; that he was still a deputy marshal, having been reappointed by Dickerson's successor. He also testified that Mike Peters, the deceased, had acted for him as a posse man and guard at different times; that on one occasion, in December, 1893, Peters had gone with him from Atoka, in the Indian county, to Paris, Tex., a distance of 126 miles, as a guard over a person arrested for horse stealing; that although Peters had never served as a guard in bringing any one to Paris, except on this one occasion, he was 'working for him all the time in looking up offenders'; that he (the deceased) frequently helped him as a posse in making arrests, although at the particular time when the killing occurred he was not acting as a posse or guard. After the conclusion of the testimony, the defendant requested the court to charge as follows:
All these requests were refused, and exceptions were duly reserved.
It was admitted on the trial that both of the defendants and the deceased were Choctaw Indians, living in the Choctaw Nation at the time of the killing. After a verdict of guilty, the defendants moved for a new trial, which motion was overruled, and the case was then brought here by error. The assignments of error are eight in number, and complain of the court's refusal to sustain the plea to the jurisdiction, of its [158 U.S. 232, 237] overruling the motion to quash, of error in permitting Dickerson and Colbert to testify to the appointment of the latter, and in allowing Colbert to testify to his acts as deputy marshal, when it did not appear by record evidence that he had been legally appointed or that any offical copy of his oath had been made; and they also aver that court erred in refusing the requests to charge, in leaving the question of jurisdiction to the jury, and in overruling the motion for a new trial.
Asst. Atty. Gen. Whitney, for the United States.
Mr. Justice WHITE, after stating the facts in the foregoing language, delivered the opinion of the court.
The accused, being Choctaw Indians, and the deceased having been a member of the same tribe, the jurisdiction of the court depended upon the provisions of the act of congress approved June 9, 1888, which is as follows:
The averments of the indictment, if true, brought the case clearly within the jurisdiction of the court. It was no error to refuse to sustain the plea to the jurisdiction, for its correctness depended upon the alleged existence of certain facts which were not admitted. All the matters stated in the assignments of error, whether applying to the court's action on the motion to quash, or in regard to the plea to the jurisdiction, or the objections to the admissibility of evidence, and to the refusal to give the charges requested, really embrace only two points: ( 1) Whether it was admissible to show by parol the appointment and service of a deputy marshal, and whether one can be considered a deputy marshal if sworn in by the clerk of the district court. (2) Whether, under the act of congress above referred to, the offense of killing a posse man or guard came within the jurisdiction of the United States if the killing occurred when the deceased was not actually engaged in performing services.
Without expressing an opinion as to the necessity of issuing a regular commission to a deputy marshal, or as to the authority of the clerk of the district court to administer the oath to such officer, it is clear that, on proof of the loss of the written authority issued by the marshal to a deputy whom he had appointed, it was permissible to offer oral evidence of the fact of appointment and of the services of the deputy. His appointment and service made him a de facto officer, even if the clerk who administered the oath was not empowered to do so. Acting as de facto deputy by the authority of the marshal, he came clearly within the provision of the statute of 1888, and is entitled to be considered as such dep- [158 U.S. 232, 239] uty for the purposes of that statute. Norton v. Shelby Co., 118 U.S. 425, 445 , 446 S., 6 Sup. Ct. 1121; In re Manning, 139 U.S. 504 , 11 Sup. Ct. 624; Ball v. U. S., 140 U.S. 118, 129 , 11 S. Sup. Ct. 761.
The second contention is equally unsound. The obvious purpose of the statute was not only to bring within the jurisdiction of the United States those who commit crimes against certain persons therein enumerated, when engaged in the performance of their duties, but also to bring within the same jurisdiction those committing offenses against such persons after the have ceased to perform their duties. The context of the law leaves no doubt on this subject, for it clearly provides for two classes of crimes: Offenses committed against the persons designated when performing their duty, and like offenses committed against such persons after they have ceased to perform their official duties. It says 'that any Indian hereafter committing against the person of any deputy marshal, posse comitatus, or guard, while lawfully engaged in the execution of any United States process, or lawfully engaged in any other duty imposed upon such deputy marshal, posse comitatus, or guard by the laws of the United States, shall,' etc. Then, in providing for the other contingency, it adds: 'Or who shall hereafter commit either of the crimes aforesaid in said Indian Territory against any person who, at the time of the commission of said crime, or at any time previous thereto, belonged to either of the classes of officials hereinbefore named, shall be subject to the laws of the United States relating to such crimes, and shal be tried by the district court of the United States, exercising criminal jurisdiction where such offense was committed,' etc. To hold that offenders who commit the designated crimes against the officers or agents named in the statute are only subject to its provisions when the crime is committed against the officer while actually engaged in performing his duty would not only destroy the letter of the law, but frustrate its obvious purpose. That purpose was not only to secure the persons therein named when actually engaged in the discharge of their duties, but also to protect them after their duties were performed.