order that they might have, as it was their exclusive right to have, the use of said alley-way at all times.

In their amended answer defendants allege that since April, 1871, they have had the full use, and peaceable, exclusive, and lawful possession of the alley-way referred to, for the purpose of egress and ingress to and from their property on the north eighty feet of lots 23 and 24. Defendant Thomas Barnett testified that he gave one Henry, a tenant of plaintiffs, permission to put up a small kitchen in the north-west corner of the west ten by twenty feet, used by defendants for an alley-way. He also stated that he did not know that the passage-way had been at any time obstructed by plaintiffs, until March 25, 1879; that he had seen boxes in the passage-way which he threw into the alley; that at one time plaintiffs piled some wood in the passage-way, which he removed by throwing it into the alley; that he told one of the plaintiffs, after knocking down the fence on the twenty-fifth of March, to take away his boards or he should remove them out of the way, and that Lachman removed them, and all the materials used in making the fence.

One of the plaintiffs testified that they made no use of the west ten by twenty feet after March 25th; that they were deterred from using this land, or attempting to inclose it, by what occurred on that date; that they did not try to rebuild the fence because they immediately brought this action, and thought it their duty to abide by the law; that he was not a fighting man, and did not want to renew any cause for trouble or personal difficulty.

Without further analysis of the proceedings or evidence, it is sufficient to say that the jury were justified in finding both a forcible entry and a forcible detainer. If it be true that defendants were entitled to unobstructed passage over the land in question, they should have adopted lawful methods for the enforcement of their rights. They were not justified in attempting to obtain them by forcible means: People v. Leonard, 11 Johns. 509; Mitchell v. Davis, 23 Cal. 384; Porter v. Cass, 7 How. Pr. 445; People v. Van Nostrand, 9 Wend. 53; Voll v. Hollis, 60 Cal. 573; Allen v. Tobias, 77 Ill. 171; Krevert v. Meyer, 24 Mo. 110; Harris v. Turner, 46 Mo. 439; Bartlett v. Draper, 23 Id. 408; 2 Bish. Cr. L., 7th ed., sec. 490.

If we are right thus far, the several assignments of error will be readily disposed of. The court did not err in excluding evidence tending to show that the tenants of defendants used the passage-way for the purpose of egress and ingress. Should it be conceded that such evidence was technically admissible, its exclusion could not have injured defendants; because the testimony all showed that they themselves, and their employees, so used it uninterruptedly until March 25, 1879; and if such use by them did not give them actual possession, it could have added nothing of value to their case to have shown in addition that their tenants used it in the same manner. In other words, proof of such use by defendants alone accomplished everything that undisputed evidence of use also by their tenants could have done.

It could not have strengthened defendants' case to have been allowed to show that their tenants made the same use of the alley-way that they did. But if the exercise of the right of way by defendants themselves did not give them actual possession, it can not be said that such use by their tenants gave it.

2. It was not error to exclude the testimony of witness Pechner, to

the effect that in 1871, while he was a tenant of defendants, he and his partner built a fence at the south end of the west ten by twenty feet, and put a gate therein, by the persuasion of defendants. It is said that this testimony was especially material for the purpose of showing the use and control by defendants of the passage-way in question. But it would not have tended to show anything of the kind. Nor would it have tended to show that the possession was not in plaintiffs, at the time of entry by defendants. Pechner claimed no interest in the land as such, or right of possession thereto, adverse to plaintiffs, in 1871, or afterwards; and evidence that he put up a fence at one end of the ground, for his own accommodation, would not show that plaintiffs were not in possession, or that defendants were, at the time of the entry.

3. The motion for nonsuit should have been granted, for reasons before stated.

4. It was not error to strike out the testimony of witness Jacobs to the effect that, several years before the trial, he heard one of the plaintiffs tell one Lipscomb that he wished witness "would remove certain wood from the alley belonging to the latter, as the defendants would object to its being there," and the same is true as to the testimony of witness Hamilton, to the effect that, "in 1871 or 1872, one of the plaintiffs told witness that he had concluded not to build a brick building, but would put up a frame, as he had to leave an alley-way for defendants and their tenants.' The most that can be claimed for this testimony is, that it tended to show a right of way a long time prior to defendants' entry. It did not tend to show that defendants were, at that time, in possession of the land, or that plaintiffs were not. It was not relevant to any material issue in the case.

The judgment and order appealed from are affirmed.

SUPREME COURT OF NEW MEXICO.

UNITED STATES v. MONTE.

Filed February 6, 1884.

MURDER BY INDIAN-JURISDICTION OF UNITED STATES COURT OVER.-The United States branch of the district court has exclusive jurisdiction of a prosecution for the murder of a white person committed by a Mescalero Apache Indian on the Mescalero Apache Indian reservation. The indictment for such crime should be in the name of the United States.

APPEAL from a judgment of the district court, convicting the defendant of murder. The opinion states the facts.

No appearance for the appellant.

G. W. Prichard, United States attorney, for the United States.

BELL, J. The defendant in the court below, and the appellant here, was indicted, tried, and convicted in the district court for the third judicial district for the crime of murder, and the case has been brought into this court for review, upon a record which presents only one material exception, namely, to the decision of the court below, overruling a plea to its jurisdiction. The indictment was found in the name of the United States, and on the United States side of the district court—that is, the branch of the court sitting for the trial of causes arising under the constitution and laws of the United States throughout the whole district, as distinguished from causes having no reference to the laws of the United States, the venue for which is laid in the several counties composing the district.

From the facts presented to us by the record, it appears that the defendant is an uncivilized Mescalero Apache Indian; that the homicide was committed on the Mescalero Apache Indian reservation, in the third judicial district of this territory; and that the person killed was a white man, and not an Indian. We understand the defendant's position to be, that the United States have not exclusive jurisdiction of the case, and that therefore the prosecution should be in the name of the territory, and disposed of on the territorial side of the court, or be disposed of by the Indians themselves, to whose tribe the defendant belongs.

While the territorial district courts, for the purposes of United States cases, possess all the jurisdiction of circuit and district courts of the United States, still that jurisdiction is strictly statutory, either as regards the nature of the case or locality in which it arises. This applies to criminal as well as civil cases; and an indictment for murder committed within the territory lies in the name of the territory, and is to be tried in the territorial as distinguished from the United States side of the district. court, unless the case falls within a statutory provision which would give the courts of the United States jurisdiction thereof.

The crime of murder is within the jurisdiction of the United States,. when committed "within any place or district of country under the exclusive jurisdiction of the United States:" U. S. R. S., sec. 5339. And "the jurisdiction vested in the courts of the United States * * * shall be exclusive of the courts of the several states, of all crimes and offenses cognizable under the authority of the United States:" Id., sec.

711.

For the purposes of this case, the words "in places under the exclu

No. 12-4

sive jurisdiction or the United States" extend to and include the Indian country: U. S. R. S., sec. 2145. It has been held by the supreme court of the United States, at its last term (October, 1883), in Ex parte Crow Dog, that the term "Indian country" includes Indian reservations situated within the geographical limits of existing territories; that the United States has jurisdiction of the crime of murder committed within such reservations; and that an indictment for such offense is triable in the United States, as distinguished from the territorial, branch of the district court, for the judicial district of the territory within the boundaries of which the reservation in question is situated.

The decision of the supreme court referred to, set forth in an opinion by Mr. Justice Matthews, not yet appearing in the official reports, is of such interest and importance in connection with the administration of justice in the territories, that it seems advisable to quote at length the portion relating to the question now under consideration.

"The district courts of the territory of Dakota are invested with the same jurisdiction in all cases arising under the laws of the United States, as is vested in the circuit and district courts of the United States: R. S., secs. 1907-1910.

"The reservation of the Sioux Indians, lying within the exterior boundaries of the territory of Dakota, was defined by article 2 of the treaty concluded April 29, 1868, 15 Stat. 635, and by section 1839, revised statutes; it is excepted out of and constitutes no part of that territory. The object of this exception is stated to be to exclude the jurisdiction of any state or territorial government over Indians, within its exterior lines, without their consent, where their rights have been reserved and remain unextinguished by treaty. But the district courts of the territory having, by law, the jurisdiction of district and circuit courts of the United States, may, in that character, take cognizance of offenses against the laws of the United States, although committed within an Indian reservation, when the latter is situate within the space which is constituted by the authority of the territorial government the judicial district of such court. If the land reserved for the exclusive occupancy of Indians lies outside the exterior boundaries of any organized territorial government, it would require an act of congress to attach it to a judicial district, of which there are many instances, the latest being the act of January 6, 1883, by which a part of the Indian territory was attached to the district of Kansas, and a part to the northern district of Texas: 22 Stat. 400.

"In the present case the Sioux reservation is within the geographical limits of the territory of Dakota, and being excepted out of it only in respect to the territorial government, the district court of that territory, within the geographical boundaries of whose district it lies, may exercise jurisdiction under the laws of the United States over offenses made punishable by them committed within its limits: United States v. Dawson, 15 How. 467; United States v. Jackalow, 1 Black, 484; United States v. Rogers, 4 How. 567; United States v. Alberty, Hempst. 444, opinion of Mr. Justice Daniel; United States v. Starr, Id. 469; United States v. Ta-wau-ga-ca, or Town Maker, an Osage Indian, Id. 304.

The district court has two district jurisdictions. As a territorial court it administers the local law of the territorial government; as invested by act of congress with jurisdiction to administer the laws of the United States, it has all the authority of circuit and district courts; so that, in in the former character, it may try a prisoner for murder committed in

the territory proper, under the local law, which requires the jury to determine whether the punishment shall be death or imprisonment for life: Laws of Dakota, 1883, c. 9; and in the other character, try another for a murder committed within the Indian reservation, under the law of the United States, which imposes, in case of conviction, the penalty of death. "Section 2145 of the revised statutes extends the general laws of the United States as to the punishment of crimes committed in any place within their sole and exclusive jurisdiction, except the District of Columbia, to the Indian country, and it becomes necessary therefore to inquire whether the locality of the homicide, for which the prisoner was convicted of murder, is within that description.

"The first section of the Indian intercourse act of June 30, 1834, defines the Indian country as follows: That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana or the territory of Arkansas, and also that part of the United States east of the Mississippi river not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and be deemed to be the Indian country."

"Since the passage of that act great changes have taken place by the acquisition of new territory, by the creation of new states, and by the organization of territorial governments; and the revised statutes, while retaining the substance of many important provisions of the act of 1834, with amendments and additions since made, regulating intercourse with the Indian tribes, has nevertheless omitted all definition of what must now be taken to be 'the Indian country.' Nevertheless, although the section of the act of 1834 containing the definition of that date has been repealed, it is not to be regarded as if it never had been adopted, but may be referred to in connection with the provisions of its original context, which remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country where it is spoken of in the statutes. It is an admitted rule in the interpretation of statutes that clauses which have been repealed may still be considered in construing the provisions that remain in force: Bramwell, L. J., in Attorney General v. Lamplough, L. R., 3 Ex. D., 223–227; Hardcastle on Statutory Law, 217; Savings Bank v. Collector, 3 Wall. 495-513; Commonwealth v. Bailey, 13 Allen, 541.

"This rule was applied in reference to the very question now under consideration in Bates v. Clark, 95 U. S. 204, decided at the October term, 1877. It was said in that case by Mr. Justice Miller, delivering the opinion of the court, that it follows from this that all the country described by the act of 1834 as Indian country remains Indian.country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provisions by treaty or by act of congress.'

"In our opinion, that definition now applies to all the country to which the Indian title has not been extinguished within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occupancy of Indians, although much of it has been acquired since the passage of the act of 1834, and notwithstanding the formal definition in that act has been dropped from the statutes, excluding, however, any territory embraced within the exterior geographical limits of a state, not excepted from its jurisdiction by treaty or by statute, at