U.S. Supreme Court
U S v. SANDOVAL, 231 U.S. 28 (1913)
* *
* 231 U.S. 28 *
* UNITED STATES, Plff. in Err.,
v.
FELIPE SANDOVAL.
No. 352.
Argued February 27, 1913.
Decided October 20, 1913.
*
[231 U.S. 28, 29] Solicitor General Bullitt and Mr. Louis G. Bissell
for plaintiff in error.
[231 U.S. 28, 32] Mr. A. B. Renehan for defendant in error.
[231 U.S. 28, 36]
Mr. Justice Van Devanter delivered the opinion of the court:
This is a criminal prosecution for introducing intoxicating liquor into
the Indian country; to wit, the Santa Clara pueblo, in the state of New
Mexico. In the district court a demurrer to the indictment was sustained
and the indictment dismissed upon the theory that the statute upon which
it is founded is invalid, as applied to Indian pueblos in New Mexico,
because usurping a part of the police power of the state, and
encroaching upon its equal footing with the other states. 198 Fed. 539.
The indictment is founded upon the act of January 30, 1897, 29 Stat. at
L. 506, chap. 109, as supplemented by 2 of the act of June 20, 1910, 36
Stat. at L. 557, chap. 310, being the New Mexico enabling act. The first
act makes it a punishable offense to introduce intoxicating liquor into
the Indian country, and the second, in naming the conditions upon which
New Mexico should be admitted into the Union, [231 U.S. 28, 37]
prescribed, in substance, that the lands then owned or occupied by the
Pueblo Indians should be deemed and treated as Indian country within the
meaning of the first act and of kindred legislation by Congress.
The pertinent portions of the enabling act are:
'Sec. 2. That . . . the said convention shall be, and is hereby,
authorized to form a constitution and provide for a state
government for said proposed state, all in the manner and under
the conditions contained in this act. . . .
'And said convention shall provide, by an ordinance irrevocable
without the consent of the United States and the people of said
state--
'First. That . . . the sale, barter, or giving of intoxicating
liquors to Indians and the introduction of liquors into Indian
country, which term shall also include all lands now owned or
occupied by the Pueblo Indians of New Mexico, are forever prohibited.
'Second. That the people inhabiting said proposed state do agree
and declare that they forever disclaim all right and title . . .
to all lands lying within said boundaries, owned or held by any
Indian or Indian tribes, the right or title to which shall have
been acquired through or from the United States or any prior
sovereignty, and that until the title of such Indian or Indian
tribes shall have been extinguished the same shall be and remain
subject to the disposition and under the absolute jurisdiction and
control of the Congress of the United States; . . . but nothing
herein, or in the ordinance herein provided for, shall preclude
the said state from taxing, as other lands and other property are
taxed, any lands and other property outside of an Indian
reservation, owned or held by any Indian, save and except such
lands as have been granted or acquired as aforesaid, or as may be
granted or confirmed to any Indian or Indians under any act of
Congress; but said ordinance shall provide that all such lands
shall be exempt from taxation by said state so long and to such
extent as Congress has prescribed or may hereafter prescribe. . . .
'Eighth. That whenever hereafter any of the lands contained within
Indian reservations or allotments in said proposed state shall be
allotted, sold, reserved, or otherwise disposed of, they shall be
subject for a period of twenty-five years after such allotment,
sale, reservation, or other disposal to all the laws of the United
States prohibiting the introduction of liquor into and 'Indian
country' shall include the Pueblo and 'Indian country' shall
include the Puebto Indians of New Mexico and the lands now owned
or occupied by them.' [231 U.S. 28, 38] Whether without this
legislative interpretation the first act would have included the
pueblo lands we need not consider. The territorial supreme court
had but recently held that it did not include them (United States
v. Mares, 14 N. M. 1, 88 Pac. 1128), and Congress, evidently
wishing to make sure of a different result in the future,
expressly declared that it should include them. That this was done
in the enabling act, and that the state was required to, and did,
assent to it, as a condition to admission into the Union, in no
wise affects the force of the Congressional declaration, if only
the subject be within the regulating power of Congress. As was
said by this court in Coyle v. Oklahoma, 221 U.S. 559, 574
, 55 S. L. ed.
853, 860, 31 Sup. Ct. Rep. 688: 'It may well happen that Congress
should embrace in an enactment introducing a new state into the
Union, legislation intended as a regulation of commerce among the
states, or with Indian tribes situated within the limits of such
new state or regulations touching the sole care and disposition of
the public lands or reservations therein, which might be upheld as
legislation within the sphere of the plain power of Congress. But
in every such case such legislation would derive its force not
from any agreement or compact with the proposed new state, nor by
reason of its acceptance of such enactment as a term of admission,
but solely because the power of Congress extended to the subject,
and therefore would not operate to restrict the state's
legislative power in respect of any matter which was not plainly
within the regulating power of Congress.' To the same effect are
Pollard v. Hagan, 3 How. 212, 224, 225, 229, 11 L. ed. 565,
571-574; Ex parte Webb, 225 U.S. 663, 683, 690 S., 691,
56 L. ed. 1248, 1256, 1259, 1260, 32 Sup. Ct. Rep. 769.
The question to be considered, then, is whether the status of the Pueblo
Indians and their lands is such that Congress competently petently can
prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood.
There are as many as twenty Indian pueblos scattered [231 U.S. 28, 39]
over the state, having an aggregate population of over 8,000. The lands
belonging to the several pueblos vary in quantity, but usually embrace
amount 17,000 acres, held in communal, fee-simple ownership under grants
from the King of Spain, made during the Spanish sovereignty, and
confirmed by Congress since the acquisition of that territory by the
United States. 1o Stat. at L. 309, chap. 103, 8; 11 Stat. at L. 374,
chap. 5. As respects six of the pueblos, one being the Santa Clara,
adjacent public lands have been reserved by Executive orders for the use
and occupancy of the Indians.
The people of the pueblos, although sedentary rather than nomadic in
their inclinations, and disposed to peace and industry, are nevertheless
Indians in race, customs, and domestic government. Always living in
separate and isolated communities, adhering to primitive modes of life,
largely influenced by superstition and fetichism, and chiefly governed
according to the crude customs inherited from their ancestors, they are
essentially a simple, uninformed, and inferior people. Upon the
termination of the Spanish sovereignty they were given enlarged
political and civil rights by Mexico, but it remains an open question
whether they have become citizens of the United States. See treaty of
Guadalupe Hidalgo, arts. 8 and 9, 9 Stat. at L. 922, 929; United States
v. Joseph, 94 U.S. 614, 618, 24 S. L. ed. 295,
297; Elk v. Wilkins, 112 U.S. 94, 28 L. ed. 643, 5 Sup.
Ct. Rep. 41. Be this as it may, they have been regarded and treated by
the United States as requiring special consideration and protection,
like other Indian communities. Thus, public moneys have been expended in
presenting them with farming implements and utensils,
See, inter alia, 10 Stat. at L. 330, chap. 167; 17 Stat. at L. 165,
chap. 233; 18 Stat. at L. 147, chap. 389; 21 Stat. at L. 130, chap. 85;
22 Stat. at L. 83, chap. 163; 26 Stat. at L. 337, 353, chap. 807; 30
Stat. at L. 594, chap. 545; 36 Stat. at L. 278, chap. 40; Reports Comr.
Indian Affairs 1907, p. 58; 1908, p. 55; 1909, p. 48; 1 Kappler, 878,
880; Executive Orders relating to Indian Reservations (1912), 124-127,
129, 130. [231 U.S. 28, 40] and in their civilization and instruction;
agents and superintendents have been provided to guard their interests;
central training schools and day schools at the pueblos have been
established and maintained for the education of their children; dams and
irrigation works have been constructed to encourage and enable them to
cultivate their lands and sustain themselves; public lands, as before
indicated, have been reserved for their use and occupancy where their
own lands were deemed inadequate; a special attorney has been employed
since 1898, at an annual cost of $2, 000, to represent them and maintain
their rights; and when latterly the territory undertook to tax their
lands and other property, Congress forbade such taxation, saying: 'That
the lands now held by the various villages or pueblos of Pueblo Indians,
or by individual members thereof, within Pueblo reservations or lands,
in the territory of New Mexico, and all personal property furnished said
Indians by the United States, or used in cultivating said lands, and any
cattle and sheep now possessed or that may hereafter be acquired by said
Indians, shall be free and exempt from taxation of any sort whatsoever,
including taxes heretofore levied, if any, until Congress shall
otherwise provide.' 33 Stat. at L. 1048, 1069, chap. 1479. An exempting
provision was also inserted in 2 of the enabling act.
The local estimate of this people is reflected by a New Mexico statute
adopted in 1854, and carried into subsequent compilations, whereby they
were 'excluded from the privilege of voting at the popular elections of
the territory' other than the election of overseers of ditches in which
they were interested, and the election of the officers of their pueblos
'according to their ancient customs.' Laws 1853-4, p. 142, 3; Comp. Laws
1897, 1678
With one accord the reports of the super-intendents charged with
guarding their interests show that they are [231 U.S. 28, 41]
dependent upon the fostering care and protection of the government, like
reservation Indians in general; that, although industrially superior,
they are intellectually and morally inferior to many of them; and that
they are easy victims to the evils and debasing influence of
intoxicants. We extract the following from published reports of the
superintendents:
Albuquerque, 1904: 'While a few of these Pueblo Indians are ready for
citizenship and have indicated the same by their energy and willingness
to accept service from the railroad companies and elsewhere, and by
accepting the benefits of schools and churches, a large per cent of them
are unable, and not yet enough advanced along the lines of civilization,
to take upon themselves the burden of citizenship. It is my opinion that
in the event taxation is imposed, it will be but a short time before the
masses of the New Mexico Pueblo Indians will become paupers. Their lands
will be sold for taxes, the whites and Mexicans will have possession of
their ancient grants, and the government will be compelled to support
them or witness their extermination.'
Sante Fe, 1904: 'The Pueblo have little or no money, and they cannot
understand why they should be singled out from all other Indians and be
compelled to bear burdens [territorial taxes] which they are not able to
assume. . . . They will not vote, nor are they sufficiently well
informed to do so intelligently.'
Zuni, 1904: 'Last November when they had their Shaleco dance I
determined to put a stop to the drunkenness. I wrote to the Indian
Office asking for a detachment from Fort Wingate. I soon received a
reply that my request had been granted. I said nothing to anyone. The
afternoon the Shaleco arrived the detachment rode in, the Indians
thinking they were passing through, and were making preparations to have
a good time. When they were notified that a Navaho was celebrating, they
[231 U.S. 28, 42] promptly arrested him and brought him over to the
guardhouse, and during the evening two others were arrested with whisky
in their possession, and also a Pueblo Indian. The detachment remained
until the dance was over and the visiting Indians had left for their
homes.'
Sante Fe, 1905: 'Until the old customs and Indian practices are broken
among this people we cannot hope for a great amount of progress. The
secret dance, from which all whites are excluded, is perhaps one of the
greatest evils. What goes on at this time I will not attempt to say, but
I firmly believe that it is little less than a ribald system of
debauchery. The Catholic clergy is unable to put a stop to this evil,
and know as little of same as others. The United States mails are not
permitted to pass through the streets of the pueblos when one of these
dances is in session; travelers are met on the outskirts of the pueblo
and escorted at a safe distance around. The time must come when the
Pueblos must give up these old pagan customs and become citizens in fact.'
Santa Fe, 1906: 'There is a greater desire among the Pueblo to live
apart and be independent and have nothing to do with the white race than
among any other Indians with whom I have worked. They really care
nothing for schools, and only patronize them to please their agent and
incidentally to get the issues given out by the teacher. The children,
however, make desirable pupils, and if they could be retained in school
long enough more might be accomplished. The return student going back to
the pueblo has a harder task before him than any other class of returned
students I know. It is easier to go back to the Sioux tepee and lead a
white man's life than to go back to the pueblo and retain the customs
and manners taught in the school.
'In pueblo life the one-man domination-the fear of the wrath of
the governor of the pueblo-is what holds this people down. The
rules of the pueblo are so strict that [231 U.S. 28, 43] the
individual cannot sow his wheat, plant his corn, or harvest same
in the autumn without the permission of the pueblo authorities.
The pueblos under my jurisdiction that adhere religiously to old
customs and rules are Taos, Picuris, Santo Domingo, and Jemez, the
there are none of them that have made much progress away from the
ancient and pagan rites.
Intemperance is the besetting sin of the Pueblo. . . . If the law
against selling intoxicants to this simple and ignorant people is
allowed to stand as now interpreted [act of 1897, as construed by
territorial court], it simply means the ultimate extermination of the
Pueblo and the survival of the fittest.'
Santa Fe, 1909: 'While apparently the Pueblo Indians are lawabiding, it
has come to my notice during the past year that in the practice of the
Pueblo form of government cruel and inhuman punishment is often
inflicted. I have strongly advised the Indians against this, and your
office has, through me, done likewise. The Pueblos, however, are very
insistent upon retaining their ancient form of government. As long as
they are permitted to live a communal life and exercise their ancient
form of government, just so long will there be ignorant and wild Indians
to civilize. The Pueblo form of government recognizes no other form of
government and no other authority. While apparently they submit to the
laws of the territory and the government, they do so simply because they
are compelled to acquiesce. The returned student who has been five years
at the boarding school is compelled to adopt the Indian dress upon his
return to the pueblo; he is compelled to submit to all the ancient and
heathen customs of his people. If he rebels, he is punished. He
therefore lapses back and becomes like one who has never seen the inside
of a school.'
Zuni, 1909: 'The Zunis, especially the old people, are very much opposed
to sending their children to school, and [231 U.S. 28, 44] to every
influence that tends to draw them away from their old ways and habits,
of living; but by persistent effort, and by appealing to their reason,
we succeeded in filling the school with children. The children are happy
and contented while at school, but when they go home for a visit, their
mothers and older sisters talk with them and make them dissatisfied and
they do not wish to return. This is especially true of the girls. . . .
Immorality and a general laxness in regard to their family relations,
together with their pagan practices, are the great curse of this tribe.
They have no marriage ceremony that is binding, and a man will often
live with two or three different women during one year. This custom is
very demoralizing. In some cases the father will sell his daughters and
the husband his wife for the purpose of prostitution. If marriage and
divorce laws could be enforced, it would be a great blessing to these
people. . . . We have had very little trouble with liquor on the
reservation during the past year, and the Pueblo officers co-operate
with me in trying to keep it from being brought on the reservation.'
This view of Pueblo customs, government, and civilization finds strong
corroboration in the writings of ethnologists, such as Bandelier and
Stevenson who, in prosecuting their work, have lived among the Pueblos
and closely observed them. Papers Arch. Inst. Am. ser. vol. 3, pt. 1
(1890 ); Bureau Am. Ethn. Reports, vols. 11 (1889-'90) and 23 (1901-'02).
During the Spanish dominion the Indians of the pueblos were treated as
wards requiring special protection, were subjected to restraints and
official supervision in the alienation of their property, and were the
beneficiaries of a law declaring 'that in the places and pueblos of the
Indians no wine shall enter, nor shall it be sold to them.' Chouteau v.
Molony, 16 How. 203, 237, 14 L. ed. 905, 919; Laws of the Indies, Bk. 6,
title 1, laws 27 and 36, title 2, law 1; Bk. 5, [231 U.S. 28, 45]
title 2, law 7; Bk. 4, title 12, laws 7, 9, 16-20; Cedulas and Decrees
shown in Hall's Mexican Law, 162-171. After the Mexican succession they
were elevated to citizenship and civil rights not before enjoyed, but
whether the prior tutelage and restrictions were wholly terminated has
been the subject of differing opinions. United States v. Pico, 5 Wall.
536, 540, 18 L. ed. 695, 696; Sunol v. Hepburn, 1 Cal. 254, 279, 280,
291, 292; 1 Nuevo Febrero Mexicano, pp. 24, 25; Hall's Mexican Laws,
161; United States v. Ritchie, 17 How. 525, 540, 15 L. ed. 236, 240. In
the last case this court observed: 'The improvement of the Indians,
under the influence of the missionary establishments in New Spain, which
had been specially encouraged and protected by the mother country, had,
doubtless, qualified them in a measure for the enjoyment of the benefits
of the new institutions. In some parts of the country very considerable
advancement had been made in civilizing and christianizing the race.
From their degraded condition, however, and ignorance generally, the
privileges extended to them in the administration of the government must
have been limited; and they still, doubtless, required its fostering
care and protection.' And in the Pico Case the court, referring to the
status of an Indian pueblo and its inhabitants during the Mexican r
egime, said: 'The disposition of the lands assigned was subject at all
times to the control of the government of the country. The pueblo of Las
Flores was an Indian pueblo, and over the inhabitants the government
extended a special guardianship.'
But it is not necessary to dwell specially upon the legal status of this
people under either Spanish or Mexican rule, for whether Indian
communities within the limits of the United States may be subjected to
its guardianship and protection as dependent wards turns upon other
considerations. See Pollard v. Hagan, 3 How. 212, 225, 11 L. ed. 565,
571. Not only does the Constitution expressly authorize Congress to
regulate commerce with the Indian tribes, but [231 U.S. 28, 46] long
continued legislative and executive usage and an unbroken current of
judicial decisions have attributed to the United States as a superior
and civilized nation the power and the duty of exercising a fostering
care and protection over all dependent Indian communities within its
borders, whether within its original territory or territory subsequently
acquired, and whether within or without the limits of a state. As was
said by this court in United States v. Kagama, 118 U.S. 375, 384, 30 S. L. ed. 228,
230, 6 Sup. Ct. Rep. 1109: 'The power of the general government over
these remnants of a race once powerful, now weak and diminished in
numbers, is necessary to their protection, as well as to the safety of
those among whom they dwell. It must exist in that government, because
it never has existed anywhere else, because the theater of its exercise
is within the geographical limits of the United States, because it has
never been denied, and because it alone can enforce its laws on all the
tribes.' In Tiger v. Western Invest. Co. 221 U.S. 286, 315, 55 S. L. ed. 738,
749, 31 Sup. Ct. Rep. 578, prior decisions were carefully reviewed and
it was further said: 'Taking these decisions together, it may be taken
as the settled doctrine of this court that Congress, in pursuance of the
long-established policy of the government, has a right to determine for
itself when the guardianship which has been maintained over the Indian
shall cease. It is for that body, and not the courts, to determine when
the true interests of the Indian require his release from such condition
of tutelage.'
Of course, if it is not meant by this that Congress may bring a
community or body of people within the range of this power by
arbitrarily calling them an Indian tribe, but only that in respect of
distinctly Indian communities the questions whether, to what extent, and
for what time they shall be recognized and dealt with as dependent
tribes requiring the guardianship and protection of the United States
are to be determined by Congress, and not by the courts. United States
v. Holliday, 3 Wall. 407, 419, 18 L. ed. 182, 186; [231 U.S. 28, 47]
United States v. Rickert, 188 U.S. 432, 443, 445 S., 47 L. ed.
522, 538, 539, 23 Sup. Ct. Rep. 478; Re Heff, 197 U.S. 488, 499, 49 S. L. ed. 848,
853, 25 Sup. Ct. Rep. 506; Tiger v. Western Invest. Co. 221 U.S. 286,
315, 55 S. L. ed.
738, 749, 31 Sup. Ct. Rep. 578.
As before indicated, by an uniform course of action beginning as early
as 1854 and continued up to the present time, the legislative and
executive branches of the government have regarded and treated the
Pueblos of New Mexico as dependent communities entitled to its aid and
protection, like other Indian tribes, and, considering their Indian
lineage, isolated and communal life, primitive customs and limited
civilization, this assertion of guardianship over them cannot be said to
be arbitrary, but must be regarded as both authorized and controlling.
As was said in United States v. Holliday, 3 Wall. 407, 419, 18 L. ed.
182, 186: 'In reference to all matters of this kind, it is the rule of
this court to follow the action of the executive and other political
departments of the government, whose more special duty it is to
determine such affairs. If by them those Indians are recognized as a
tribe, this court must do the same. If they are a tribe of Indians,
them, by the Constitution of the United States, they are placed, for
certain purposes, within the control of the laws of Congress. This
control extends, as we have already shown, to the subject of regulating
the liquor traffic with them. This power of residing in Congress, that
body is necessarily supreme in its exercise.' In that case the
congressional enactment prohibiting the sale of liquor to Indian wards,
and forbidding its introduction into the Indian country, was applied to
a sale in the state of Michigan to an Indian who had and exercised the
right to vote under the laws of the state, and other applications of the
statute to Indians and Indian lands in other states are shown in United
States v. 43 Gallons of Whiskey (United States v. Lariviere) 93 U.S.
188, 197, 23 S. L.
ed. 846, 848; Dick v. United States, 208 U.S. 340, 52 L. ed. 520, 28 Sup.
Ct. Rep. 399; United States v. Sutton, 215 U.S. 291, 54 L. ed. 200, 30 Sup.
Ct. Rep. 116; Hallowell v. United States, 221 U.S. 317, 55 L. ed. 750, 31 Sup.
Ct. Rep. 587; United States v. Wright, 229 U.S. 226, 57 L. ed. 1160, 33
Sup. Ct. Rep. 630.
It is said that such legislation cannot be made to em- [231 U.S. 28, 48]
brace the Pueblos, because they are citizens. As before stated,
whether they are citizens is an open question, and we need not determine
it now, because citizenship is not in itself an obstacle to the exercise
by Congress of its power to enact laws for the benefit and protection of
tribal Indians as a dependent people. Cherokee Nation v. Hitchcock, 187
U.S. 294, 308, 47
S. L. ed. 183, 190, 23 Sup. Ct. Rep. 115; United States v. Rickert, 188
U.S. 432, 445, 47
S. L. ed. 532, 539, 23 Sup. Ct. Rep. 478; United States v. Celestine,
215 U.S. 278, 290,
54 S. L. ed. 195, 199, 30 Sup. Ct. Rep. 93; Hallowell v. United States,
221 U.S. 317, 55 L. ed.
750, 31 Sup. Ct. Rep. 587.
It also is said that such legislation cannot be made to include the
lands of the Pueblos, because the Indians have a feesimple title. It is
true that the Indians of each pueblo do have such a title to all the
lands connected therewith, excepting such as are occupied under
Executive orders, but it is a communal title, no individual owning any
separate tract. In other words, the lands are public lands of the
pueblo, and so the situation is essentially the same as it was with the
Five Civilized Tribes, whose lands, although owned in fee under patents
from the United States, were adjudged subject to the legislation of
Congress enacted in the exercise of the government's guardianship over
those tribes and their affairs. Stephens v. Cherokee Nation, 174 U.S.
445, 488, 43 S. L.
ed. 1041, 1056, 19 Sup. Ct. Rep. 722; Cherokee Nation v. Hitchcock, 187
U.S. 294, 308, 47
S. L. ed. 183, 190, 23 Sup. Ct. Rep. 115; Heckman v. United States, 224
U.S. 413, 56 L. ed.
820, 32 Sup. Ct. Rep. 424; Gritts v. Fisher, 224 U.S. 640, 56 L. ed. 928, 32 Sup.
Ct. Rep. 580; United States v. Wright, 229 U.S. 226, 57 L. ed. 1160, 33
Sup. Ct. Rep. 630. Considering the reasons which underlie the authority
of Congress to prohibit the introduction of liquor into the Indian
country at all, it seems plain that this authority is sufficiently
comprehensive to enable Congress to apply the prohibition to the lands
of the Pueblos.
We are not unmindful that in United States v. Joseph, 94 U.S. 614, 24 L. ed. 295, there
are some observations not in accord with what is here said of these
Indians, but as that case did not turn upon the power of Congress over
them or their property, but upon the interpretation and purpose of a
statute not nearly so comprehensive as the legislation [231 U.S. 28, 49]
now before us, and as the observations there made respecting the
Pueblos were evidently based upon statements in the opinion of the
territorial court, then under review, which are at variance with other
recognized sources of information, now available, and with the
long-continued action of the legislative and executive departments, that
case cannot be regarded as holding that these Indians or their lands are
beyond the range of congressional power under the Constitution.
Being a legitimate exercise of that power, the legislation in question
does not encroach upon the police power of the state, or disturb the
principle of equality among the states. United States v. Holliday, 3
Wall. 407, 419, 18 L. ed. 182, 186; United States v. 43 Gallons of
Whiskey ( United States v. Lariviere) 93 U.S. 188, 197, 23 S. L. ed. 846,
848; United States v. Kagama, 118 U.S. 375, 384, 30 S. L. ed. 228,
230, 6 Sup. Ct. Rep. 1109; Hallowell v. United States, 221 U.S. 317, 55 L. ed. 750, 31 Sup.
Ct. Rep. 587, and Ex parte Webb, 225 U.S. 663, 683, 690 S., 691, 56 L.
ed. 1248, 1256, 1259, 1260, 32 Sup. Ct. Rep. 769.
The judgment is accordingly reversed, with directions to overrule the
demurrer to the indictment, and to proceed to the disposition of the
case in regular course.