People v. Bray

De Haven, J. The defendant was convicted of the crime of selling intoxicating liquor to an Indian, named Mary Smith, in violation of section 397 of the Penal Code, which, as amended in 1893 (Stats, of 1893, p. 98), reads as follows: “ Every person who sells or furnishes, or causes to be sold or furnished, any intoxicating liquors to any habitual or common drunkard is guilty of a misdeiheanor; or who sells or furnishes, or causes to be sold or furnished, intoxicating liquors to any Indian is guilty of a felony.” It was admitted upon the trial that the defendant furnished intoxicating liquor to the said Mary Smith, at the time and place stated in the information, and that she “ has no other than Indian blood in her veins.” It was further shown that her father and mother live in a house of their own, and their said daughter, Mary, resides with them; that the parents and daughter dress like white people, and have adopted the habits and customs .of civilized life; that the father of the said Mary owns a horse, wagon, household goods, and other property, and that neither he nor any of his family have ever lived upon a government reservation, “ nor have they ever lived in tribal relations, or under or subject to the control of any chief or like authority.” Upon this state of the evidence the defendant requested the court to give the following instructions:

“ 2. Section numbered 397 of the Penal Code, under which the information in this case was filed, is not violated by a sale of intoxicating liquor to an Indian, who at the time of the sale was a citizen of this state.”

[346]“4. If you find from the evidence that the Indian in question was born in this state, and at the time of her birth her parents were living separate and apart from any tribe of Indians, and had no tribal relations, and did not live on any Indian reservation, or other land set apart for such purpose, then I charge you that the Indian in question is a citizen of the United States, and you cannot convict the defendant of the crime charged against him in the information, even if you should also find that he did sell or furnish the said Indian intoxicating liquors at the time alleged.”

“ 12. All citizens of this state are entitled to equal protection under the law in person, property, and privileges, and a law which takes from one person, on account of color or race, any privilege which others are legally permitted and allowed to enjoy, is void as to such person.”

The court refused to so instruct the jury, and this refusal is assigned as error, and presents all the grounds upon which the defendant claims that the judgment and order appealed from should be reversed; and the counsel for appellant rest their argument for such reversal upon these three prepositions: 1. That under the facts shown the person named in the information as the one to whom defendant furnished the intoxicating liquor is a citizen of the United States; 2. That section 397 of the Penal Code, in so far as it relates to Indians, applies only to those Indians who are under control of the general government as dependent communities, living in tribal relations or upon government reservations, and as such deemed wards of the general government; 3. That, if said section is not so limited by construction, it is void, because it discriminates between citizens of the United States, denying to the citizen of Indian birth the privilege of buying intoxicating liquors, which is accorded to citizens of the white race, and that, in making such distinction, it abridges the privileges and immunities of the former.