THE PEOPLE, Respondent, v. RAYNA TOM CARMEN, Appellant, 43 Cal. 2d 342

SHENK, Acting C. J. A rehearing was granted to give further consideration to the question of receiving additional evidence on appeal in death penalty cases. For reasons hereinafter stated we have concluded that it may not be so received. The defendant pleaded not guilty and not guilty by reason of insanity to a charge of the murder of Wilbur McSwain. One jury found him guilty of first degree murder, without recommendation, and another found him sane. The judgment sentenced him to death, and the case is here on automatic appeal. There was no motion for a new trial.

The defendant was previously tried on the same charge and found guilty of murder. At that trial he was also found guilty, under a second count, of assault with intent to murder Alvin McSwain, the brother of Wilbur. On appeal this court reversed the judgment of conviction of murder for refusal to give manslaughter instructions and because of the giving of erroneous instructions on first degree murder, but the judgment of conviction on the second count was affirmed. (People v. Carmen, 36 Cal.2d 768 [228 P.2d 281].) The evidence at the second trial was substantially the same as at the first.

Briefly summarized it shows that on the evening of April 22, 1950, the defendant drove his car to a dance at Tosemite Forks in Madera County. Riding with him were Ella McSwain, Wilbur McSwain, Josephine Davis and Henry Chenot. Alvin McSwain was also at the dance. After the dance many of those attending, including the above mentioned persons, went to a place known as Kilroy’s Last Stand, where soft drinks and sandwiches were sold. An altercation occurred in which Alvin McSwain, Henry Chenot and Ted Davis, Josephine’s son, pushed the defendant to the ground.

When he got up he threatened to kill the “whole family” and then left for his home 35 to 40 miles away. He obtained a rifle, loaded it, and drove to within % to % of a mile from the McSwain home. He approached the house carrying the rifle, and, finding no one there, sat on the front porch. After 15 or 20 minutes he heard a ear arrive and approached it. In the front seat of the ear were Marion Donnell and Wilbur McSwain, and in the back seat were Ted Davis and Alvin McSwain.

The defendant said he was going to kill all of them except Donnell, and he fired a shot across the front seat, striking Wilbur who was then standing on the other side of the car. He then walked toward the back of the car and fired three shots into the back seat, inflicting three wounds on Alvin. Immediately afterwards he was disarmed. Wilbur died from his wound several hours later.

The second trial was solely for the murder of Wilbur, and the defendant urges that it was error to admit evidence of the shooting of Alvin, because, he asserts, the assault was an independent offense other than that for which he was being tried. The shooting of Alvin occurred a few seconds after the defendant shot Wilbur. Alvin and Wilbur were both of the same family, and the defendant had threatened to kill the whole family.

These and other circumstances of the case clearly show that the shooting of Alvin was a part of the same transaction in which Wilbur was killed, and evidence pertaining to it was therefore admissible. (Code Civ. Proc., §§ 1850, 1870, subd. 7; Pen. Code, § 1102; People v. O’Bryan, 165 Cal. 55, 59 [130 P. 1042]; People v. Manasse, 153 Cal. 10, 12 [94 P. 92] ; People v. McClure, 148 Cal. 418, 421 [83 P. 437] ; People v. Teixeira, 123 Cal. 297, 298 [55 P. 988] ; People v. Crowley, 13 Cal.App. 322, 325-326 [109 P. 493].) Its relevancy on the issue of the defendant’s intent in shooting Wilbur is obvious. (People v.

Bermijo, 2 Cal.2d 270, 277 [40 P.2d 823]; People v. O’Bryan, supra, 165 Cal. 55; People v. Miller, 121 Cal. 343 [53 P. 816]; People v. Craig, 111 Cal. 460 [44 P. 186] ; People v. Walters, 98 Cal. 138 [32 P. 864].) The case of People v. Lane, 100 Cal. 379 [34 P. 856], relied upon by the defendant, did not involve factors here present such as the threat by the defendant that he was going to kill the “whole family” and the carrying out of his threat by killing Wilbur and by attempting to murder Alvin as part of the same affray. (See People v.

Teixeira, supra, 123 Cal. 297, 298, pointing out that in the Lane case one of the two shootings was no part of the other shooting.) In connection with the admission of the foregoing evidence, the defendant asserts that the court improperly instructed the jury. After pointing out to the jury that such evidence had been admitted the court went on to say that it was admitted for a limited purpose only, “not to prove distinct offenses or continual criminality, but for such bearing, if any, as it might have on the question whether the defendant is innocent or guilty of the crime charged against him in this action.

You are not permitted to consider that evidence for any other purpose. . . .

The value, if any, of such evidence depends on whether or not it tends to show: (1) the identity of the person who committed the alleged crime in question in this case, if it was committed; or (2) that the defendant had a motive for the commission of the offense charged against him in this action; or (3) that the defendant entertained the intent which is a necessary element of the alleged crime for which he now is on trial, as pointed out in other of my instructions; or (4) that the defendant was familiar with the means alleged to have been used in the commission of the crime of which he is accused in this action; or (5) that the defendant possessed knowledge that might have been useful in the commission of the crime for which he is now on trial; or (6) that there existed in the mind of the defendant a plan, scheme, system or design, into which fitted the commission of the offense for which he now is on trial. ’ ’ Thereafter the court stated that the jury could consider the evidence for purposes (4) and (5), but could not consider it in connection with those purposes where the other offense involved was a “later offense.” The defendant’s point seems to be that the People knew that the Alvin shooting was a later offense than the killing of Wilbur and therefore should not have offered the instruction embracing (4) and (5).

The instruction was somewhat inconsistent, for it said, in the listing of purposes, that the Alvin affair could be considered and, afterwards, that a later offense could not be considered. If there was error, however, we fail to see how it could have prejudiced the defendant. He admitted on the witness stand that he fired the shot which killed Wilbur and that he was thoroughly familiar with the manner of operating the gun, and, accordingly, there was no serious question at the trial with respect to the matters referred to in parts (4) and (5) of the instruction.

There is no merit in the defendant’s claim that he was not permitted to explain his “physical condition.” He testified that he had a pain in his head during and after the drive from Kilroy’s Stand to his home and stated that it hurt particularly where there was a sear on his head. He was asked what caused the sear and answered: “I was in an automobile accident, I had a fractured skull, unconscious seven days— Me. Byman ‘ [Special Deputy Attorney General] : I am going to object as incompetent, irrelevant and immaterial, if the Court please.

The Coubt : Sustained, it calls for expert testimony.” There was no attempt to strike the defendant’s answer, and the sustaining of the objection did not eliminate the answer which had already been given. The defendant was then asked if “that particular part of your head hurt a little more than the rest of it?” and he replied, “Yes, it did.” No further questions were asked on this subject, and the matter was dropped. It does not appear that there was any error in sustaining the objection.

The materiality or relevancy of the question asked of the defendant was not apparent, and counsel for the defendant did not attempt to explain the purpose of the question or offer to show how an answer might be relevant. In the absence of such a showing no prejudice appears. (People v. Danielly, 33 Cal.2d 362, 376 [202 P.2d 18] ; People v. Reyes, 194 Cal. 650, 652 [229 P. 947]; People v.

McGann, 194 Cal. 688, 692-694 [230 P. 169].) On the trial of the plea of not guilty by reason of insanity, the court, over the defendant’s objection, permitted the prosecuting attorney to open the case and to make the opening argument. Counsel for the defendant declined to argue the case on the insanity plea, and that issue was submitted to the jury after appropriate instructions. The defendant claims that, inasmuch as he had the burden of proof, such order of. proof and argument constituted error. That question appears to be settled. “No

section of the Penal Code specifically directs the order of the trial upon a plea of not guilty by reason of insanity, and it has been repeatedly held that defendant has no right to open and close the argument to the jury (People v. Hickman (1928), 204 Cal. 470, 482 [268 P. 909, 270 P. 1117] ; People v. Goold (1932), 215 Cal. 763, 766 [12 P.2d 958]; People v. Kimball (1936), 5 Cal.2d 608, 611 [55 P.2d 483]; see, also, People v. Hardy (1948), 33 Cal.2d 52, 65-66 [198 P.2d 865]) although the trial court may permit him to do so (see People v. Lee (1930), 108 Cal. App. 609, 613 [291 P. 887]).” (People v.

Letourneau, 34 Cal.2d 478, 495 [211 P.2d 865].) At the time set for oral argument of this appeal Mr. Robert Peckham, an assistant United States attorney, appeared before this court and stated that there was reason to believe that the crime was committed in “Indian country” as that term is defined by the federal statutes, that the defendant is an Indian and, therefore, that the United States may have exclusive jurisdiction over the matter.

Subsequently defendant filed an application to produce additional evidence on appeal to show that he is an Indian and that the land on which the crime was committed was an Indian allotment.

Thereafter the People filed a document, signed by the prosecution alone, which was entitled “Stipulation re Application to Produce Evidence.” It stated, among other things, that defendant is an Indian but is a citizen of California who has never been subject to any restrictions on account of his race and has at all times enjoyed all the rights and privileges of any other citizen, that decedent Wilbur McSwain was an Indian, that letters patent to the lots where the crime was committed were issued by the United States to Maggie Jim, an Indian, that the letters patent are still held in trust by the United States of America and that the lots have never been part of an Indian reservation.

The defendant signed and filed a separate so-called “stipulation” in which he disagreed with some of the matters set forth in the document filed by the People but stated that defendant and Wilbur McSwain were Indians, that the alleged crime took place on lands allotted by the United States in trust for Maggie Jim, an Indian, and that the lands are still held in trust.

The briefs of the parties have presented numerous questions concerning the propriety of considering a stipulation of facts made on appeal, the meaning of the particular documents filed by the parties, the construction and effect of the pertinent federal statutes, and the constitutionality of such statutes if they are interpreted to vest exclusive jurisdiction over the crime in the federal government. We have concluded that the proposed offer to produce additional evidence on the appeal should be denied.

Furthermore, even assuming that additional evidence could be received on appeal in this class of eases by stipulation or otherwise, the facts stated in the so-called “stipulation” as well as shown in the entire record are insufficient to show exclusive jurisdiction in the federal courts. Since the defendant committed the crime in a county of this state, it may not be assumed that any special circumstances existed which would deprive the state of jurisdiction. (People v. Collins, 105 Cal. 504, 509 [39 P. 16].) He cannot supplement the record by means of his application to produce additional evidence on appeal.

Section 4 of

article VI of the Constitution provides that the ‘1 Supreme Court shall have appellate jurisdiction on appeal from the superior courts . . ., on questions of law alone, in all criminal cases where judgment of death has been rendered. ...” [Italics added.]

Section 4% of

article VI of the Constitution and

section 956a of the Code of Civil Procedure permit receipt of additional evidence on appeal only where trial by jury is not a matter of right or has been waived, and it has been definitely held that an application such as that made by the defendant must be denied where, as here, a jury trial was not waived. (People v. Mendes, 35 Cal.2d 537, 546 [219 P.2d 1] ; see also People v.

Cowan, 38 Cal.App.2d 144,152-154 [100 P.2d 1079].) The evidence presented at the trial is not sufficient to permit a determination that there is exclusive federal jurisdiction in the present ease, and we do not pass on the question of what remedies may be available to the defendant to show alleged lack of jurisdiction in the state court.

Nothing in the record indicates that the location of the crime was “Indian country” within the meaning of any of the statutes which have been cited. (See, e.g., 18 U.S.C. §§ 1151, 1152, 1153, and 3242.) While there was evidence that defendant and the victim were “Indians,” the use of this term, without more, shows only that the persons were Indian by race and blood.

That fact is insufficient to vest in the federal government exclusive jurisdiction over a crime committed in Indian country, because such jurisdiction does not exist when the crime involves Indians who have been emancipated in some manner, as, for example, by severing tribal relations and taking on civilized habits or by receiving a conveyance of allotted lands by patent in fee from the federal government. (25 U.S.C. § 349; Louie v. United States, 274 P. 47, 49 (murder) ; People v.

Ketehum, 73 Cal. 635, 638-639 [15 P. 353] (recognizing the principle but not indicating whether the murder involved was committed in Indian country]; State v. Bush, 195 Minn. 413 [263 N.W. 300, 302-303] ; State v. Campbell, 53 Minn. 354 [55 N.W. 553, 554, 21 L.R.A. 169] ; State v. Monroe, 83 Mont. 556 [274 P. 840, 842-843] (manslaughter) ; People v. Livingstone (Sup.Ct., N.Y.), 123 Misc. 605 [205 N.Y.S. 888, 894-895]; State v. Nimrod, 30 S.D. 239 [138 N.W. 377, 378-379]; State v. Howard, 33 Wash. 250 [74 P. 382, 384-385] (murder); see also Irvine v.

District Court, 125 Mont. 398 [239 P.2d 272, 275] (burglary); State v. Big Sheep, 75 Mont. 219 [243 P. 1067, 1070,1071].) These eases are to the effect that an Indian who has become emancipated is to be treated like any non-Indian for the purposes of - jurisdiction in a case such as this, and it is settled that the state courts have jurisdiction, in the absence of an Indian treaty, where a non-Indian commits a crime against another non-Indian in Indian country. (New York v. Martin, 326 U.S. 496, 497 et seq. [66 S.Ct. 307, 90 L.Ed. 261]; Draper v.

United States, 164 U.S. 240, 242 et seq. [17 S.Ct. 107, 41 L.Ed. 419]; United States v. McBratney, 104 U.S. 621, 624 [26 L.Ed. 869]; see Williams v. United States, 327 U.S. 711, 714 [66 S.Ct. 778, 90 L.Ed. 962].) In People v. Pratt, 26 Cal.App.2d 618, 622-623 [80 P.2d 87], there is language, unnecessary to the decision, to the effect that the principles of the eases dealing with emancipated Indians do not apply where the defendant has committed murder or one of the other major crimes designated in what is now

section 1153 of title 18 of the United States Code. The Louie, Ketchum, Monroe, Howard and Irvine eases, cited in the preceding paragraph, involved those major crimes, and the only decision cited in the Pratt case does not support its statement. The language in the Pratt case must therefore be disapproved insofar as it is inconsistent with the views expressed herein.

The two documents entitled “stipulation,” even if given the effect of a stipulation to the extent that they agree on some of the facts, are likewise insufficient to bring this ease within the cited statutes pertaining to federal jurisdiction over offenses committed by or against Indians in Indian country.

Insofar as the status of the defendant and Wilbur McSwain as Indians is concerned, the stipulation adds nothing to the evidence produced at trial because it, in effect, relates merely to the race and descent of these persons and does not disclose whether they were Indians of the type subject to federal jurisdiction or whether they were emancipated. Although the stipulation indicates that the crime was committed on allotment lands held in trust for an Indian and thus may have taken place in “Indian country” (18 U.S.C. § 1151), this alone, as we have seen, does not establish exclusive federal jurisdiction.

Accordingly, since the stipulated facts are insufficient to show that the courts of this state are without jurisdiction, we need not consider whether this court can properly determine a jurisdictional question upon the basis of facts contained in a stipulation made upon appeal. Finally, the defendant asserts that the penalty imposed should be reduced. That cannot be done, however, in the absence of prejudicial error. (People v. Thomas, 37 Cal.2d 74 [230 P.2d 351]; People v. Odle, 37 Cal.2d 52 [230 P.2d 345].) Here there is none. The application to produce additional evidence is denied. The judgment is affirmed.

Edmonds, J., Traynor, J., Spence, J., and Peek, J. pro tern., concurred. Assigned by Chairman of Judicial Council.