Cowell v. State

Willson, Judge. 1. It is alleged in the indictment that defendant, on the thirtieth day of July, 1883, in the Creek Nation, in the Indian Territory, did fraudulently take, steal and carry away from the possession of one Fred Brown three horses, the personal property of said Brown, without his consent, etc. And that on the first day of August, 1883, the said defendant did bring said horses into the county of Grayson, State of Texas. And that on the said thirtieth day of July, 1883, the said acts of said defendant constituted the offense of theft of horses, and were punishable as such under and by virtue of the laws of said Creek Nation, then in full force. We think this indictment is in strict accordance with the law, containing every necessary allegation, and that the defendant’s motion in arrest of the judgment, based upon supposed defects in the indictment, was properly overruled. (Penal Code, Arts. 798, 799; State v. Morales, 21 Texas, 298.) 2. It was not error to permit the written testimony of the witness Fred Brown, taken before an examining court, to he read in evidence. The proper predicate for the introduction of it was laid by proving that the witness resided out of the State, etc. It was no objection to this testimony that it had not been sent to the clerk of the district court sealed up in an envelope, [61] etc. It was identified as the testimony of the witness by the magistrate who reduced it to writing, and was properly certified to by him at the time it was subscribed and sworn to by the witness. (Evans v. The State, 12 Texas Ct. App., 370.) 3. It was not error to permit the State to prove that the words “Muscogee” and “Creek” signified the same thing, and that the “Muscogee Nation” was the same as the “Creek Nation.” It was in fact unnecessary for the State to make this proof, as it is a matter of public history, and of which the courts take judicial notice. (Encyclopaedia Brittanica, vol. 12, p. 868; 1 Whart. Ev., sec. 338.) 4. It was not error to admit in evidence the Code of Laws of the Muscogee Nation. The book purported to be published by authority of said Nation, and was certified to be a true copy of the manuscript laws of said Nation, which certificate was authenticated by the signature of the principal chief of that government, under the great seal thereof. The Muscogee or Creek Nation is one of the five civilized tribes of Indians settled by the United States government in the Indian Territory. These civilized tribes, while under the general supervision and control of the United States, have local governments of their own. Besides a principal and subordinate chiefs, they have councils, which correspond in many respects to the Legislature of a State. They also have simple codes of laws and courts to enforce them. These local governments come within the meaning of “foreign governments,” as used in Article 2250 of our Revised Statutes. “Foreign” signifies that which belongs to another; that which is strange. Every nation is foreign to all the rest; and the several States of the American Union are foreign to each other with respect to their municipal laws. (1 Bouvier’s Law Dic., word “Foreign;” Cummins v. The State, 12 Texas Ct. App., 121.) We have discovered no error in this record. The charge of the court is in all essentials full and correct, and the evidence amply sufficient to support the conviction. The judgment is affirmed. Affirmed, Opinion delivered April 26, 1884,