Adams v. United States Records and Briefs

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Southern Printing Co., Inc., New Orleans, La.— 10,410— 3-12-43— 40



IN THE

United States Circuit Court of Appeals
FOR THE FIFTH CIRCUIT

No. 10,410

RICHARD PHILLIPS ADAMS, JOHN W ALTER  
BORDENAVE AND LAWRENCE MITCHELL,

Appellants,

UNITED STATES OF AMERICA,
Appellee.

On Appeal From the District Court of the United States 
For the Western District of Louisiana, 

Alexandria Division

BRIEF ON BEHALF OF THE UNITED STATES

MALCOLM E. LAFARGUE,
United States Attorney.

JOHN A. PATIN,
Assistant United States Attorney.





1

STATEMENT OF THE CASE ...„  ___________  5

STATEMENT OF FACTS  ______________________  7

ARGUMENT _____________________   23
I

Assignment of Error No. 1___________________ 24

Assignment of Error No. 2 _______   24

Jurisdiction of the District Court ..... 25

On Application for Writs of

Habeas Corpus by Appellants____________  48

Assignment of Error No. 3___,_______________  56

Assignment of Error No. 4__________________  57

Assignment of Error No. 5________     60

Assignment of Error No. 6 __________________ 60

Assignment of Error No. 7_______    61

Assignment of Error No. 8__________________  63

Assignments of Error Nos. 9, 10 and 11________ 64

Assignments of Error Nos. 12 and 13___________ 64

Assignment of Error No. 14_______   65

INDEX

Page



11

Assignment of Error No. 16___________ ,_____ 66

Assignment of Error No. 17______________:__ 66

Assignment of Error No. 18_________________ 67

CONCLUSION ___________________________________  67

TABLE OF STATUTES AND CASES

Statutes Involved:
Corpus Juris, Vol. 12, p. 395____________________  33

Corpus Juris, Vol. 23, p. 274____________________  34

Dart’s Statutes, Sec. 1090_________________________ 3 4

Dart’s Statutes, Sec. 2898_________________________27-32

Dart’s Statutes, Sec. 3329_________________________  35

Section 451, Title 18, U. S. C_____________________ 26

Section 457, Title 18, U. S. C____________________  26

Section 452, Title 28, U. S. C___________________ 49

Section 463, Title 28, U. S. C________________   49

Section 255, Title 40, U. S. C____________________  29

IN D EX— Continued

Page



Ill

Table of Cases:

Adams vs. U. S., 87 L. Ed. 209 (for lower
court opinion see 126 Fed (2d) 774)-------------  53

Baker vs. State, 33 So. 716-------------------------------------- 62

Brown vs. State, 17 So. 278______________________  62

Bowen vs. Johnston, Warden, 306 U. S. 19-------------  52

Collins et al. vs. Yosemite Park and Curry Co.,
304 U. S. 518, 528-530__________ _____________ 43

Craig vs. Hecht, 263 U. S. 255___________________  52

Deas vs. State, 161 So. 729________________________ 62

Ex parte Siebold, 100 U. S. 371, 394, 395__________  37

Ferguson vs. Swope, Warden 109 Fed. (2d) 152___ 52

Ginsberg vs. U. S., 96 Fed. (2d) 433..’.___________  37

Green vs. State, 96 So. 651_______________ ______  62

James vs. Dravo Contracting Co., 302 U. S.
134, 147-149 __________________________________  39

Pettibone vs. U. S., 148 U. S. 196_________________ 55

Railway Co. vs. Whitton’s Administrator, 80
U. S. 270, 288________________________________ 39

IN DEX— Continued

Page



IV

Silas Mason Co. et al. vs. Tax Commission of
Washington et al., 302 U. S. 186, 197, 203, 207 41

Smith vs. Johnson, 109 Fed (2d) 152-------- ------------- 52

State vs. Hodgeson et al., 58 So. 14---------------------- 62

Story vs. State, 59 So. 480-------------------------------------- 62

Tully vs. State, 68 So. 934------------------------------------  62

United States vs. Marchant and Colson,
25 U. S. 480-________________________~________  57

United States vs. Hill (C. C. A. 3d), 71 Fed.
(2d) 159 ________________- ------ ---------------------- 52-54

United States vs. Stahl, 27 Fed. Cas. 1288-------------  36

United States vs. Thompson, 41 Fed. Sup.
13, 14, 15____________________________________  45

Weems et al. vs. State, 141 So. 215---------- -------------- 62

IN D EX— Continued

Page



5

IN THE

United States Circuit Court of Appeals
FOR THE FIFTH CIRCUIT

No. 10,410

RICHARD PHILLIPS ADAMS, JOHN W ALTER  
BORDENAVE AND LAWRENCE MITCHELL,

Appellants,
vs.

UNITED STATES OF AMERICA,
Appellee.

On Appeal From the District Court of the United States 
For the Western District of Louisiana, 

Alexandria Division

BRIEF ON BEHALF OF THE UNITED STATES

STATEMENT OF THE CASE

Richard Phillips Adams, John Walter Bordenave and 
Lawrence Mitchell were indicted by a Federal Grand 
Jury empaneled at Alexandria, Louisiana, on June 22, 
1942, under an indictment charging the crime of rape. 
(R. 1.) The victim named in the indictment is Hattie 
Rose Mason. The Court, on its own motion, and it ap­
pearing that the defendants were probably unable to 
employ counsel, appointed three attorneys to represent



6

the three defendants in the case, each attorney being spe­
cifically assigned to each defendant.

Following the return of the indictment, motions to 
quash were filed by the defendants, together with a mo­
tion for a continuance filed on behalf of Bordenave. 
(R. 8, 10, 12, 14.) All motions having been overruled, 
this matter proceeded to trial before the United States 
District Court for the Western District of Louisiana, at 
Alexandria, Louisiana, on July 27, 1942. (R. 33.) All 
defendants and each of their attorneys had theretofore 
been served with copies of the indictment, lists of wit­
nesses, and lists of petit jurors, in accordance with the 
law. (R. 7.)

After trial on the indictment, the jury, on July 30, 
1942, returned a verdict finding all three defendants 
guilty as charged. (R. 420.)

Motions for a new trial were filed by all defendants 
(R. 421), and were thereafter overruled by the Court. 
On August 10, 1942, Judge Ben C. Dawkins imposed 
sentence against all three defendants directing that they 
be put to death according to law such sentence to be 
executed on Friday, October 30, 1942. (R. 422.) Judg­
ments of sentence were duly signed and filed herein. 
(R. 424, 425, 426.)

I
From this conviction and sentence an appeal has been 

taken to this court.

Pending the completion of the appeal, and while the 
record was being prepared for transmittal to the Clerk 
of the Circuit Court of Appeals, all three defendants



7

filed applications for writs of habeas corpus, directed 
against the Warden of the Federal Detention Headquar­
ters at New Orleans, the place where the defendants 
were and are incarcerated. The order on this application 
was signed by a Judge of the Circuit Court and the 
matter was fixed for hearing at New Orleans. At the 
hearing it was made to appear that the application for 
the writ was based on a jurisdictional question. It was 
thereupon determined by the Court that this question 
had been raised and would be presented on the appeal 
of the instant cause, and accordingly the Court declined 
to issue any orders on this application. It was directed 
that the question of jurisdiction be submitted on the 
principal appeal in this cause, since the entire record 
of this case would then be made available to the Court.

STATEMENT OF FACTS

The record in this case has not been printed, since it 
appeared that the defendants were unable to pay the 
expenses of such an undertaking. Accordingly, three 
copies of the record have been prepared and filed with 
this Court in typewritten form. The record consists of 
four hundred fifty-six (456) typewritten pages, includ­
ing, of course, the transcript of evidence and the record 
of documents filed. In view of the length of the record 
and due to the difficulty involved in perusing the type­
written record, we will state the facts in this cause some­
what at length in this brief in order that a complete 
picture of the case might be secured by the Court at 
the outset.

The Government established its concurrent jurisdic­
tion to try this case by introducing documents showing



8

the acquisition and ownership of the land on which the 
offense took place, first by the Department of Agricul­
ture for use as a national forest, and later by the War 
Department for use as an army camp. These documents 
appear as Exhibits numbered G-l, G-2, G-3, G-4, and 
G-5. The question of jurisdiction is more fully estab­
lished in our argument below. It should be noted that 
no exception to the jurisdiction was made either prior 
to or during the trial of this cause, and such question 
has only been raised during this appeal.

The complaining witness in this case is Hattie Rose 
Mason, as per her name given in the indictment. (R. 1.) 
She is presently known as Mrs. George Schuler, having 
married Private George Schuler, of the United States 
Army, on July 11, 1942. (R. 92.) She was approxi­
mately twenty years of age at the time of the offense 
(computation based on the fact that she was seventeen 
when first married, approximately three years prior 
thereto. (R. 92, 93.) In this brief we will refer to the 
complaining witness as Miss Mason, for the purpose of 
convenience.

Miss Mason formerly resided at Ripley, Ohio (R. 9), 
where she knew George Schuler and went out with him. 
(R. 93.) She had been previously married to one John 
McMillan, while she was seventeen years of age, but 
this prior marriage was unsuccessful and resulted in the 
securing of a divorce. (R. 92.)

George Schuler, the finance of complaining witness, 
was inducted into the United States Army on March 30, 
1942, and was transferred to Camp Claiborne, Louisiana, 
on April 4, the same year. Three weeks after Schuler



9

came to Louisiana, Miss Mason determined to come down 
and meet him. (R. 93.) At this time it was understood 
between Miss Mason and George Schuler that they were 
to be married, and she accordingly came down to see 
him and get a job in or around Alexandria. (R. 94.) 
Following her arrival in Alexandria, she secured em­
ployment as a waitress at the Service Club at Camp 
Claiborne. She resided during this time in a tent con­
nected with and part of the Guest House. (R. 94.)

On May 9, 1942, at approximately 7:30 P. M., Pri­
vate Schuler met Miss Mason at the Service Club after 
she got o ff duty. (R. 95.) Both of them then went to 
the second floor of the Service Club, where they pro­
ceeded to write letters to various relatives and friends. 
(R. 96.) Following this, at approximately 9:30 o’clock, 
they both decided to take a walk and went down to an 
open space behind the Service Club, where it was cus­
tomary for couples to go. (R. 96.) The place where Miss 
Mason and Private Schuler went was one hundred 
thirty-seven (137) feet from the road, which is directly 
in the rear of the Service Club. (R. 177.) It appears 
that couples frequently went to this place without objec­
tion from military authorities, there being no regulations 
forbidding this practice. (R. 184, 261, 265.) The couple 
brought a blanket with them in order to lie on, and to 
protect the girl’s legs from mosquitoes. (R. 97.) Shortly 
after arriving at this point in the area near the Service 
Club, Private Schuler fell asleep, and sortly there­
after Miss Mason fell asleep. (R. 97, 143.) Prior to go­
ing to sleep, Private Schuler noticed that there were at 
least two other couples in this area besides themselves. 
R. 143.)



10

At approximately 2 o’clock A. M. on May 10, 1942, 
Private Schuler and Miss Mason were awakened by the 
noise caused when a jeep, a quarter-ton car which was 
designated and furnished to those on guard duty (R. 
242), occupied by three negro soldiers, drove up to the 
place where they were. (R. 97, 144.) Miss Mason was 
thoroughly frightened and started to walk off, and one 
of the negroes hollored at them both to “ Halt!” (R. 98.) 
The negroes then proceeded to use extremely vile lan­
guage and threatened the boy and the girl with incar­
ceration in the guardhouse. (R. 101, 104, 144.)

At this point it appears advisable to describe the physi­
cal appearance of the three defendants. Mitchell is the 
smallest in size of all three and is also the darkest in 
color. On May 9, 1941, he was the driver of the jeep 
in question (R. 241), and was the only one of the three 
who wore a metal helmet. (R. 236, 237, 239.) Adams is 
somewhat taller than Mitchell, though not very much, 
and is distinguishable by an extremely large head size, 
he being generally known as “ Headquarters.” (R. 203.) 
He is also somewhat heavier than either of the other 
two. His complexion is rather splotchy, but it is gener­
ally fairly dark. On the night of May 9 and 10 Adams 
was assigned to camp guard duty and was in posses­
sion of a rifle. (R. 255, 333.) The third defendant, Bor- 
denave, is noticeably lighter in complexion than the 
other two. On the night in question he was acting cor­
poral of the guard and as such had the use of a jeep 
and driver, Mitchell. (R. 255.) The physical appearance 
of the defendants does not, of course, appear in the 
record, but could be very well noticed by the Court and 
jury during the trial.



11

Immediately after the jeep drove up, one of the ne­
groes, who had a rifle, and is described as being dark 
and heavy set (Adams, see above), went to Schuler and 
guarded him with the rifle while the light-colored negro 
(Bordenave, see above) held Miss Mason. The third negro 
then secured a pistol, went over to Schuler and threat­
ened to blow his brains out. (R. 102, 146.) Miss Mason 
was then made to go with one of the negroes out in the 
field, apparently to look for other couples. (R. 103, 146.) 
Miss Mason was then asked by one of them what she 
“would do to get out of this.” She replied that she 
couldn’t do anything. (R. 103.) The one with the helmet 
(Mitchell) then went to Schuler with a revolver, stuck 
it in his ribs, and took some loose change that Schuler 
had on his person. (R. 147.)

All persons then got into the jeep, Miss Mason being 
made to sit between the driver, who had a helmet 
(Mitchell), and the light-colored negro (Bordenave), and 
Schuler was made to sit in the back seat with the heavy- 
set negro (Adams). (R. 107, 147.) The jeep then was 
driven in a northerly direction toward the barracks oc­
cupied by Schuler. (R. 109, 148.) On the way the jeep 
was stopped by a white guard. (R. 109.) This guard 
was Private Roy Davis, and he was on regimental guard 
duty from 2:00 A. M. until 4:00 A. M. on May 10, 
1942. (R. 186, 188.) The jeep was halted by this guard 
and the driver (Mitchell) told the guard that the couple 
(Private Schuler and Miss Mason) was being “ run in,” 
or was being taken home. (R. 109, 189.) Mitchell was 
identified in court by Private Davis as being the driver 
of the jeep. (R. 189.) While in the jeep someone made 
a statement to the effect that they were going to take 
Schuler home (R. 108), but actually the jeep drove some



12

distance past the barracks occupied by Schuler. (R. 109.) 
The jeep then stopped and Schuler was told to get out, 
at which time Miss Mason also attempted to get out, but 
was prevented from doing so. (R. 110, 134, 148.) Schuler 
was then told by the occupants of the jeep that there 
was no need for him to worry, because they planned on 
taking Miss Mason home. (R. 110, 148.) The jeep then 
drove o ff and Miss Mason was made to bend over, and 
the blanket was thrown over her body so as to conceal 
her. (R. 110.) At this point she became extremely scared 
and began to think that something was wrong. How­
ever being afraid that she would be shot, she did not do 
anything definite. (R. 132, 134.) She also thought that 
possibly the blanket was thrown over her in order that 
the negroes could bring her home without being stopped 
by other guards. (R. 132.) The jeep was then halted by 
another guard and the occupants told this guard that it 
was all right; they were “ doing the same things that 
he was.” (R. 134.) This guard was a negro by the name 
of Private Ardis Wright. (R. 200, 202.) When the jeep 
came by he called for it to halt, but it proceeded some 
distance beyond him before stopping. R. 205.) Private 
Wright recognized two of the occupants of the jeep, Bor- 
denave, who was the corporal of the guard, and who had 
previously taken him to his post, and also Adams, known 
to him as “ Headquarters.” (R. 203.) Private Wright did 
not know the driver of the jeep, nor was he able to see 
Miss Mason, who was crouched down in front and cov­
ered by a blanket, the jeep being eighteen or nineteen 
paces from him at the time it stopped. R. 204, 205.)

After getting out of the jeep, Private Schuler pro­
ceeded to his barracks. R. 149.) At this time he had 
been in the army approximately one month, and during



13

this time he was quarantined for two weeks under usual 
military practice and then quarantined for another two 
weeks due to his contraction of measles and mumps. 
(R. 150.) He did not know at this time what authority 
guards had, whether they could arrest people and take 
them into custody, or even whether or not he could be 
given a jail sentence for being back of the Guest House. 
(R. 150, 151.) Following the assurance of the guards 
that they were going to take Miss Mason home, he did 
not take any action or make any report until the fol­
lowing morning, when he was called by Miss Mason and 
told what had happened. (R. 149.)

After going by the second guard, Private Wright, the 
jeep proceeded in a westerly direction and then turned 
off the main road into a field. (R. 111.) The driver 
(Mitchell) then uncovered Miss Mason and asked her 
whether she had ever been “ loved by a negro.”  She 
stated that she had not and did not want to be, where­
upon he stated, “ I will show you how it is to be loved 
by one.” Miss Mason then began crying and begged to 
be permitted to go home, and states that she was afraid 
to yell because she thought “ they would possibly shoot 
me.” Miss Mason was at that time in fear of her life. 
Mitchell then took the blanket and spread it on the 
ground, threw Miss Mason on the blanket and proceeded 
to attack her. (R. I l l ,  112.) During all of this time 
Mitchell had a revolver with him and the other two 
negroes, one of whom had a rifle, stood by. (R. 112.) 
There was actual sexual intercourse, involving actual 
penetration by Mitchell, all of this occurring against the 
will of Miss Mason, who was constantly in fear of her 
life, and who was in an apparently dazed condition, due 
to fear. (R. 112, 336.)



14

Following the attack, Miss Mason was replaced in the 
jeep and returned to the Guest House, at which point 
she was warned that if she said anything about the 
occurrence they would make it plenty hard for her. 
(R. 113, 114.) Miss Mason continuously cried from the 
time she was first taken out of the jeep until she was 
brought back to the Guest House, and, in fact, she con­
tinued crying after arriving there. (R. 104.)

The tent occupied by Miss Mason was also occupied by 
a roommate, Miss Vera Mae Wilson. (R. 114, 213.) Miss 
Miss Wilson pretended to be asleep at the time Miss 
Mason first came, although she did notice that Miss 
Mason was crying. (R. 217.) Miss Wilson did not speak 
to Miss Mason until the following morning, at which 
time she was told that “ something terrible had happened,” 
and appeared disturbed. (R. 219.) Apparently, Miss Ma­
son had partially regained her composure (R. 220), but 
did not know exactly what to do. She called Schuler and 
reported the occurrence to him (R. 115), besides par­
tially explaining the circumstances to Miss Wilson, al­
though she did not give all details to the latter. (R. 224.) 
Miss Wilson then reported the matter to the hostess 
(R. 224), who in turn notified military authorities.

On the same night that this happened, Private Jona­
than Fields and his wife, while walking from the Photo­
graphic Shop to the Guest House, were accosted by 
three negroes in a jeep (R. 231), one of whom identified 
himself as Adams. (R. 232.) The other occupants of the 
jeep were a dark negro, who was driving, and a light- 
colored negro, sitting besides the driver in the front seat. 
(R. 233.) The same jeep also appears to have been used 
in transporting two white men, Henry E. Ward and



15

Webb Williamson, to a point between the finance and 
quartermaster buildings. Both of these white men iden­
tified Mitchell as the driver of the vehicle, who wore a 
steel helmet. (R. 236, 237, 239.) This occurred at ap­
proximately 3 o’clock on the morning of May 10, 1942, 
which was therefore after the time of the attack. 
(R. 238.)

The identification of the subjects was established 
through the testimony of Captain Alvin P. Brauer, camp 
provost marshal, who testified that Bordenave was act­
ing corporal of the guard that night, was assigned a 
jeep with Mitchell as driver, and Adams was on guard 
duty the same night (R. 247 et seq.); also through the 
testimony of Lieutenant Gerald R. Coker, who was an 
officer of the guard on the night in question and knew 
Mitchell as being a driver of the jeep in question (R. 
241), and as wearing a helmet on the morning of May 
10, 1942. (R. 242, 243.) Schuler also specifically iden­
tified and pointed out Bordenave in the courtroom (R. 
149), and described the other two defendants rather 
accurately, including the fact that Mitchell wore a steel 
helmet and was the one who took the money. (R. 144, 
147.)

The identification made by Ward (R. 243 et seq.), 
Williamson ( R. 237 et seq.) and Private Fields (R. 225 
et seq.) was also pertinent, as more fully set out above.

However, irrespective of the above items of identifica­
tion, the three defendants in this case established posi­
tive identification through confessions and statements 
which each of them signed and acknowledged before an 
agent of the Federal Bureau of Investigation, namely,



16

Mr. H. H. Wallace, Jr. (R. 299 et seq.) The Court took 
particular care in requiring the Government to show 
beyond any doubt that these statements were obtained 
freely and voluntarily, without any threats, coercion, 
or promises on the part of anyone. (R. 290, 291, 298.) 
The Government thereupon established through the tes­
timony of Agent Wallace (supra), Captain Brauer (R. 
305 et seq.), Captain Rufus Goza, camp prison officer 
(R. 317 et seq.), and Sheriff Grady Kelley (R. 327 et 
seq.) that no threats or promises had been made to any 
of these defendants to induce them to make statements, 
and, further, that none of them had been treated any 
differently from other prisoners, except that they had 
been kept isolated from the other prisoners in the usual 
pens of the camp stockade. (R. 321, 322, 323.)

On May 27, 1942, Special Agent Wallace, of the F. 
B. I., secured a statement from defendant Adams. (R. 
284.) This statement was read to the jury by the wit­
ness. (R. 333.) In this statement Adams admits that he 
was on guard duty on the night in question, met Bor- 
denave and Mitchell, and agreed with them to go out 
in the jeep. While riding in the jeep they came to an 
open field and came upon Miss Mason and Private 
Schuler, whereupon both were questioned and subse­
quently placed in the jeep and driven off. Schuler was 
let off near his barracks and Miss Mason was brought 
to the place of attack, where Mitchell proceeded to at­
tack Miss Mason. Adams states that Miss Mason cried 
continuously and appeared to be in a dazed condition, 
and, further, that Mitchell had a loaded gun, while 
Adams’ rifle was not loaded. Adams claims that he did 
not want to take part in the proceedings, but that he 
was afraid to do anything. (R. 333-337.)



17

Bordenave gave a statement to Special Agent Wallace 
on May 30, 1942 (R. 338), and this statement was read 
to the jury. (R. 340.) In his statement Bordenave ad­
mits that he was acting corporal of the guard on the 
night in question, went out with Mitchell and “ Head­
quarters” (Adams) in a jeep to check the guard. He 
stated that he originally had the .45 caliber automatic 
pistol. Bordenave states that while driving near the 
Guest House they saw a blanket in the field, and then 
saw Private Schuler and Miss Mason. Mitchell then took 
the gun, halted the couple, and then Mitchell and Adams 
got out of the jeep and walked around with Private 
Schuler and Miss Mason. Mitchell later returned, carry­
ing Miss Mason in his arms; she was placed in the jeep 
and Schuler was placed in the rear. Bordenave states 
that Mitchell had retained the .45 automatic, and that 
in spite of his (Bordenave’s) suggestion that the girl 
be brought home, Mitchell proceeded to the place of 
attack. The attack is then described. Mitchell is identi­
fied as the one who “ was giving the orders.”  (R. 
340-343.)

While Mitchell was incarcerated in the Caddo Parish 
jail at Shreveport, Louisiana, he wrote a letter to his 
commanding officer, which was subsequently turned over 
to Captain Goza, who then gave it to special Agent 
Wallace. (R. 344.) This letter was presented to Mitchell 
in the presence of his attorney by Special Agent Wal­
lace, and Mitchell admitted that he had written the 
letter. R. 344, 345.) This letter was read to the jury. 
(R. 347.) In the letter Mitchell states that he was de­
tailed for guard duty on the night in question and that 
he met Bordenave and Adams, and that Bordenave, who 
was acting corporal, suggested that all three go out on



18

patrol. Mitchell mentions that Webb and Williamson 
were picked up and brought to the Finance Building 
before Miss Mason and Schuler were encountered. While 
driving near the Guest House to “ check upon our guard 
there”  they came upon Private Schuler and Miss Mason, 
whereupon he questioned both parties, went out looking 
for other couples with Miss Mason, and then carried 
her back to the jeep. Mitchell then took Private Schuler 
to his company and put him out, following which he 
asked Miss Mason whether “ she’d go with us for money.” 
Mitchell claims that “ she did say she needed money, so 
I took it for granted that she did.” Mitchell then states 
that the girl was brought out into a field, the blanket 
placed on the ground, and she was laid upon it. Miss 
Mason began crying as soon as he “ started to have my 
(his) affair with her.” Following this, Mitchell replaced 
Miss Mason in the jeep and wrapped a blanket around 
her and brought her back to the Guest House. The de­
fendant states that Miss Mason requested him not to 
tell anybody about the occurrence. (R. 347-350.)

All three of the above documents were offered and 
admitted in evidence and appear as Exhibits G-8 
(Adams), G-9 (Bordenave), and G-10 (Mitchell). It will 
be noted that portions of these statements were deleted 
when same were read to the jury. The deletions are in­
dicated by brackets marked in pencil on these statements. 
The following explanation appears appropriate at this 
time: When the matter was first called for trial the 
defense objected that the indictment did not indicate 
which defendant was charged with having committed the 
actual act of intercourse. The Court ruled that the Gov­
ernment would be limited to showing only one act of in­
tercourse, and we were directed to elect which one we



19

would show. The Government thereupon elected to show 
that the actual intercourse was committed by the de­
fendant Mitchell, and that the defendants Adams and 
Bordenave were “ accessories to the fact and supporting, 
assisting, aiding and abetting” Mitchell in the commis­
sion of the offense. (R. 68.) This election was necessary 
in view of the Court’s ruling, since the evidence actually 
showed that three acts of intercourse took place; that is, 
one by each of the defendants. In the statement given by 
Adams (Exhibit G-8), he states that both Mitchell and 
Bordenave had intercourse with Miss Mason. Bordenave’s 
statement (Exhibit G-9) is to the effect that all three 
had intercourse with Miss Mason, and likewise Mitchell, 
in his letter (Exhibit G-10), states that all three had 
intercourse with Miss Mason. In view of the Court’s 
ruling, the evidence was restricted throughout the trial 
so as to show only one actual act of intercourse or rape.

During the trial a map identified as Exhibit A was 
posted on a blackboard in full view of the jury, and con­
siderable testimony was given with the use of this map. 
This map was an official map of the camp and, due to 
the confidential nature of its contents, it was not made 
part of the record of this case. (R. 174.) However, a 
map identified as Government Exhibit G-6 was actually 
offered in evidence, and it is possible through the use 
of this exhibit to explain to a large extent the testi­
mony given concerning the main official map of the 
camp. On Exhibit G-6 the place where Miss Mason and 
Schuler were located is marked by the letter “ E” under­
neath the legend, “ Miss Hattie Rose Mason stated this 
is the place.”  The point of attack has been located at two 
different places in very close proximity, identified on 
the map as “ A ” (the point indicated by Miss Mason)



20

and “ B” (the point indicated by defendant Adams). The 
barracks occupied by Schuler were located just directly 
south of the section line which stretches across the en­
tire map and somewhat west of the point where the 
couple was first seen by the defendants. The Guest House 
is located at the point marked “ C”  and the Service Club 
at the point marked “D,”  both of which are south of the 
point where the couple was originally located, while the 
barracks occupied by Schuler was north of this point, 
and the point of attack is considerably northwest of this 
point. (R. 173, 175, 176.) The scale on the map is one 
inch for each 400 feet. (R. 178.) In order for the jeep to 
have traveled by the first guard, then to the place where 
Schuler was released, then by the second guard, and on 
to the point of attack, it was necessary for it to travel 
in a westerly direction somewhat west of the Photo­
graphic Shop, indicated on the map G-6, then due north 
to approximately the section line, which extends across 
the full length of the map in an east and west direc­
tion, and then the jeep must have turned west on a road 
which approximately follows the section line to the point 
where it turned off to the right in order to proceed to 
the point of attack, at either “A ” or “ B.”  This would, of 
course, more fully appear through an examination of the 
official map, Exhibit A, which was actually viewed by 
the Court and jury, but the description herein given is 
substantially in conformity with the physical appearance 
of the official map, which, as stated above, could not be 
made part of the record in this case due to the ex­
tremely confidential type of information which it dis­
closes, and which, under present conditions, cannot be 
made public. Its handling during the trial precluded any 
unauthorized person from having access to the confiden­
tial information disclosed by the map. The place of at-



21

tack is described as open, cut-over land with a few pine 
saplings. (R. 181.) The distance from the point behind 
the Service Club where Schuler and Miss Mason were 
originally located to the place of attack is approximately 
2.5 miles to the point indicated by Adams, and 2.6 miles 
to the point indicated by Miss Mason. (R. 282.) This 
is by the ordinary mode of travel described in our dis­
cussion above.

Captain Brauer, the camp provost marshal, described 
the difference between a regimental guard post and a 
camp guard post by stating that a camp guard is made 
up of men who guard the camp as a whole, while the 
regimental guards are stationed at various posts within 
the camp next to the various regiments, the latter guard­
ing the area actually occupied by the regiment. (R. 256.) 
It appears that the third guard zone of the camp guard 
unit, the one of which Bordenave was corporal of the 
guard (Exhibit G-7), was located in the northwest quar­
ter of the map area on the official map. (R. 257.) Re­
ferring to Exhibit G-6, the area covered by the third 
zone would extend somewhat to the east of the points of 
attack, since the camp proper did not take up Section 3, 
which was used as a maneuver area, etc. Thus, we find 
that Private Wright, who had been placed on his post 
by Corporal Bordenave (R. 204), was stationed at a 
point on the east and west section line where the north 
and south road meet the east and west road, which 
would make it northwest of the Service Club some 2500 
feet. We further find that the camp stockade, which 
was the point from which the guards operated, was lo­
cated at a point considerably west of the Service Club. 
The point was actually indicated on the official map 
(R. 258) and transferred to the exhibit which we have



22

available (G-6), it would be located southeast of the 
points of attack approximately in line with the Service 
Club. The witness indicated that the guard post which 
was in the vicinity of the Service Club was located in 
Zone 2. (R. 259.) It appears that the guards assigned 
to various zones were not supposed to visit any of the 
other guard zones, and accordingly, since Bordenave was 
assigned to Zone 3 and Adams to Zone 1, neither of 
them had any business or official duties in Zone 2, 
which included the area around the Guest House and 
Service Club. (R. 260.) It further appeared that in trav­
eling from Zone 3, which is the zone Bordenave was 
supposed to patrol, to and from the stockade, which was 
his headquarters, he was supposed to travel in the shortest 
possible way and in the most direct route, and, accord­
ingly, by going to the area near the Guest House he was 
definitely out of bounds. (R. 260.) The officer of the day, 
Lieutenant Coker, further testified that a corporal of 
the guard had authority only to investigate his own re­
lief— that is, the guards operating in the zone specifically 
assigned to him— and, accordingly, Bordenave, who was 
assigned to the third zone, would only be interested in 
the posts in that zone (R. 247), none of which, of course, 
included the Service Club area. The provost marshal fur­
ther testified that the corporal of the guard assigned to 
Zone 3 would have no reason at all for being in the area 
behind the Guest House or Service Club, which was in 
Zone 2 (R. 272, 273), and, likewise, the officer of the 
day, Lieutenant Coker, testified that such transfer from 
one zone to another would not be authorized except in 
an emergency, and that no such emergency arose on the 
night in question. (R. 278.) The provost marshal and 
Lieutenant Coker further testified that it was a viola­
tion of the regulations for a couple to be behind the 
Service Club at 2 o’clock in the morning, or any other 
time. (R. 243, 262.)



23

The testimony of Dr. McGuffin (R. 365 et seq.), who 
was the only witness called by the defense, was some­
what conflicting. Despite the fact that it was previously 
established that Miss Mason had been married (R. 92), 
and on the night of the attack was too scared to make 
any physical resistance, due to the fact that she was in 
fear of her life (R. 112, 114, 134), the doctor stated 
that he should be able to determine thirty hours after 
an intercourse whether or not an act of intercourse had 
taken place. (R. 390, 391.) This witness testified that 
thirty hours following the time of attack he examined 
Miss Mason and found no physical signs of intercourse 
(R. 390); this in spite of the very definite testimony of 
Miss Mason (R. 113), and the admissions made by the 
defendants themselves. (Exhibits G-8, G-9 and G-10.)

On the basis of the facts produced as above outlined, 
the case was submitted to the jury and a verdict of 
guilty as charged was returned (R. 420), following which 
sentence was imposed (R. 423), and notice of appeal 
filed. (R. 433.) The matter is presently before this 
Court on this appeal.

ARGUMENT

The appellants in this case base their appeal on seven­
teen assignments of error, numbered 1, 2, 3, 4, 5, 6, 7, 
8, 9, 10, 11, 12, 13, 14, 16, 17 and 18, respectively. 
However, in their supporting brief they have apparently 
abandoned several of their assignments of error, and it 
will be our purpose in this brief to answer those which 
are discussed in appellants’ brief. It is also noted that 
the appellants have filed a separate brief in support of



24

their application for a writ if habeas corpus which is 
directed to their attack on the jurisdiction of the Dis­
trict Court to try said appellants, and, inasmuch as 
Assignment of Error No. 2 covers the same question, our 
answer to the application for a writ of habeas corpus 
and their assignment of error attacking the jurisdiction 
will be answered in the logical order.

Assignment of Error No. 1

This assignment of error, which reads, “ The verdict 
herein is contrary to the law and the evidence,”  is gen­
eral in its nature and needs no specific answer, as all 
of the points  ̂ raised by the appellants in their appeal 
relative to this allegation will be answered in more de­
tail below.

Assignment of Error No. 2

Under this assignment of error the appellants allege 
that “ the Court was without jurisdiction to indict, try 
and convict the defendants and appellants.1’ It is ap­
parent from the outset that, in view of the stress laid 
upon this particular question, the appellants have based 
all of their hope in reversing their conviction on this 
single assignment of error. The Court will recall that 
in an independent action the appellants made an appli­
cation to this Court for a writ of habeas corpus, alleg­
ing that the District Court was without jurisdiction to 
try the case, and that, under the circumstances, they 
should be released from custody. To this application the 
Government filed a plea to the jurisdiction of the Fifth 
Circuit Court of Appeals as a unit, and also an answer 
categorically denying the contentions of the appellants



25

as well as their right to collaterally attack the jurisdic­
tion of the District Court outside of the facts as con­
tained in the record before this Court. After a hearing 
was had before this Court on the application for a wrrit 
of habeas corpus, this Court refused to issue the writ and 
referred the question to a hearing on the merits. We 
wish to have it noted, however, at this time, that we 
do not intend to abandon any of our rights under our 
pleadings filed in the habeas corpus proceeding.

Jurisdiction of the District Court

The appellants in this case were indicted, convicted 
and sentenced to death for the violation of Section 457, 
Title 18, U. S. C. A., under an indictment consisting of 
one count, which reads as follows:

“ In the name and by the authority of the United 
States of America, the Grand Jurors of the United 
States, duly selected, drawn, impaneled, sworn and 
charged to inquire into and for the Western District 
of Louisiana, at a term of the District Court of the 
United States, begun and held at Alexandria,' Louis­
iana, on the 22nd day of June, 1942, upon their 
oaths, present:

“ Count One'

“ That heretofore, to wit, on or about the 10th 
day of May, 1942, in the Parish of Rapides, State 
of Louisiana, Western District of Louisiana, and 
within the jurisdiction of this Honorable Court, 
Richard Phillips Adams, John Walter Bordenave 
and Lawrence Mitchell, whose names are to your 
Grand Jurors otherwise unknown, did knowingly, 
wilfully, unlawfully and feloniously commit the 
crime of rape upon the person of Hattie Rose Ma-



26

son, a woman, within and on lands acquired for the 
use of the United States and under the concurrent 
jurisdiction thereof, namely, Camp Claiborne, a 
United States military camp and reservation, con­
trary to the form of the statute in such case made 
and provided and against the peace and dignity of 
the United States.”

Section 457, Title 18, is found in Chapter 11 of the 
United States Code Annotated, which is entitled “ Of­
fenses Within Admiralty, Maritime and Territorail 
Jurisdiction of United States.”  The controlling section 
as to the territorial jurisdiction under this chapter is 
Section 451, Title 18, the pertinent part of which reads 
as follows, to wit:

“ The crimes and offenses defined in this chapter 
shall be punished as herein prescribed:

“ Third. When committeed within or on any 
lands reserved or acquired for the use of the United 
States, and under the exclusive or concurrent juris­
diction thereof, or any place purchased or otherwise 
acquired by the United States by consent of the 
legislature of the State in which the same shall be, 
for the erection of a fort, magazine, arsenal, dock­
yard, or other needful building. As amended June 
11, 1940, c. 323, 54 Stat. 304.”

Prior to the amendment to Section 451, Title 18, on 
June 11, 1940, this section read as follows:

“ The crimes and offenses defined in this chapter 
shall be punished as herein prescribed:

“ Third. When committeed within or on any 
lands reserved or acquired for the exclusive use of 
the United States, and under the exclusive jurisdic­
tion thereof, or any place purchased or otherwise 
acquired by the United States by consent of the



27

legislature of the State in which the same shall be, 
for the erection of a fort, magazine, arsenal, dock­
yard, or other needful building.”

It is to be noted that by the amendment of June 11, 
1940, the third paragraph of Section 451, Title 18, was 
amended by inserting the words “ or concurrent” after 
“ exclusive” and before “ jurisdiction” and omitting “ ex­
clusive” before “ use of the United States.”

Attention is also directed to the fact that the amend­
ment of June 11, 1940, to the third paragraph of Sec­
tion 451, Title 18, made no reference to “ partial juris­
diction.”

At the time that Section 451, Title 18, was amended 
on June 11, 1940, the existing statute of the State of 
Louisiana concerning jurisdiction over land acquired by 
the United States within the State of Louisiana read 
as follows:

“2898. Jurisdiction over land expropriated by 
United States.— The United States may enter upon 
and occupy any land which may have been, or may 
be purchased or condemned, or otherwise acquired, 
and the right of exclusive jurisdiction over the prop­
erty so acquired during the time that the United 
States shall be or remain the owner thereof for all 
purposes, except the administration of the criminal 
laws of said state, and the service of civil process 
of said state therein, and shall hold the same ex­
empt from all state, parochial, municipal or other 
taxation.” (Dart’s Statutes, 2898; Acts 1892, No. 
12, Section 2.)

The land on which the appellants committeed the 
crime of rape in violation of Section 457, Title 18, was



28

acquired by the United States of America by an act of 
sale from Branch E. Smith to the United States of 
America, which act of sale was filed in the office of the 
Clerk and Recorder of Rapides Parish, Louisiana, re­
corded in Book 250, Page 383, Conveyance Records of 
said Parish, on December 19, 1940, and by a correction 
deed dated February 18, 1941, between the same par­
ties, which was duly filed in the office of the Clerk and 
Recorder of Rapides Parish, Louisiana, and which was 
recorded in Book 254, Page 242, Conveyance Records 
of said parish, on February 21, 1942. (Ex. G-5.) The 
acquisition of the land in question was obtained by the 
United States of America for the use and benefit of 
the United States Department of Agriculture.

The land thus acquired by the Department of Agri­
culture was in what was called the Kisatchie National 
Forest in Louisiana and was subsequently turned over 
to the War Department for the establishment of a mili­
tary camp and reservation designated as Camp Clai­
borne. (Exs. G-l, G-2, G-3 and G-4.)

The location of the crime, which is designated by the 
letters “A ” and “ B” on Exhibit G-6, was conclusively 
shown by the testimony of Ervin N. Allen, camp en­
gineer (R. 171-185, inclusive), to be within the confines 
of Camp Claiborne and on the land owned by the United 
States of America, being that purchased from Branch 
E. Smith.

The appellants have never at any time questioned the 
fact that the crime was committed on property owned 
by the United States and within the confines of Camp 
Claiborne. Their only contention, now raised for the first



29

time in this court, is that the Government did not as­
sume exclusive jurisdiction over the land in question in 
accordance with the provisions of Section 255, Title 40, 
U. S. C. A., by filing with the Governor of the State an 
acceptance of exclusive or partial jurisdiction. The perti­
nent part of Section 255 reads as follows:

“ Notwithstanding any other provision of law, the 
obtaining of exclusive jurisdiction in the United 
States over lands or interests therein which shall 
have been or shall hereafter be acquired by it shall 
not be required; but the head or other authorized 
officer of any department or independent establish­
ment of the Government may, in such cases and at 
such times as he may deem desirable, accept or 
secure from the State in which any lands or inter­
ests therein under his immediate jurisdiction, cus­
tody, or control are situated, consent to or cession 
of such jurisdiction, exclusive or partial, not there­
tofore obtained, over any such lands or interests 
as he may deem desirable and indicate acceptance 
of such jurisdiction on behalf of the United States 
by filing a notice of such acceptance with the Gov­
ernor of such State or in such other manner as 
may be prescribed by the laws of the State where 
such lands are situated. Unless and until the United 
States has accepted jurisdiction over lands hereafter 
to be acquired as aforesaid, it shall be conclusively 
presumed that no such jurisdiction has been ac­
cepted.” As amended June 28, 1930, c. 710, 46 Stat. 
828; February 1, 1940, c. 18, 54 Stat. 19; October 
9, 1940, c. 793, 54 Stat. 1083.

In considering Section 255, as amended, it is well to 
note that this section was originally Section 355 of the 
Revised Statutes and that Congress in 1841 passed a 
joint resolution (5 Stat. 468) which, as later re-enacted 
in Section 355 of the Revised Statutes, provided that



30

“ No public money shall be expended upon any site or 
land purchased by the United States for the purpose of 
erecting thereon any armory arsenal, fort, fortification, 
navyyard, customhouse, lighthouse or other public build­
ing of any kind whatever . . . until the consent
of the legislature of the state in which the land or 
site may be to such purchase has been given.” By 
the amendment to Section 255, Title 40, which was ap­
proved on February 1, 1940, this provision was amended 
to dispense with the necessity of obtaining exclusive juris­
diction and to make it optional with the Government to 
accept or secure from the state “ consent to or cession 
of such jurisdiction, exclusive or partial,” as may be 
deemed desirable and to indicate acceptance by filing a 
notice thereof with the Governor of the State or as pre­
scribed by its laws. It was further provided that until 
such acceptance it shall be conclusively presumed that 
no such jurisdiction has been accepted. This amendment 
is tanamount to dispensing with the requirement of state 
consent under this statute, since it had been ruled that 
the consent required prior to the amendment was a con­
sent which would serve to vest in the United States ex­
clusive jurisdiction over the site under the constitutional 
provision. In other words, under Section 255, as amend­
ed, on February 1, 1940, even though a state gives its 
consent to the Government assuming exclusive jurisdic­
tion over land acquired by it, the Government can either 
refuse or accept such jurisdiction. Therefore, in those 
instances where the state cedes exclusive jurisdiction to 
the Federal Government it does not necessarly mean that 
the Government will exercise exclusive jurisdiction un­
less the Government accepts such jurisdiction by filing 
its acceptance with the Governor of the State. On the 
other hand, those cases where states do not cede or con-



31

sent to the Government assuming exclusive jurisdiction, 
the amendment is inoperative until the Government se­
cures such cession or consent by and from the state, 
should it desire to assume exclusive jurisdiction over the 
land acquired. It is important to note that Section 255 
does not in any manner refer to “ concurrent jurisdic­
tion.” The most ^that can be said of Section 255, as 
amended, is that it considers and deals with “ exclusive” 
or “ partial.” There is no indication that the Congress 
had any intention to deal with “ concurrent jurisdiction,” 
because the matter was not at issue and formed no part 
of Section 255, which was originally Section 355 of the 
Revised Statutes, that required the consent of the legis­
lature of the State in which the land was purchased 
without any discretion being exercised on the part of 
the Government in so far as jurisdiction was concerned. 
It is apparent that Section 255 was amended to take care 
of those cases where states ceded exclusive jurisdiction 
over the land acquired by the Government, but over 
which the Government would not care to assume such 
jurisdiction. However, in those instances where the state 
did not cede exclusive jurisdiction to the Government, 
Section 255, as amended, is inoperative until such con­
sent is given by the state, which in no way interferes 
with the Government exercising concurrent jurisdiction, 
as in the instant case.

The provisions of the 1940 amendment to Section 255 
establishing a conclusive presumption against the accept­
ance of exclusive jurisdiction in the absence of a filing 
of notice thereof has solved the difficulties created by 
the rule that since before the amendment acceptance was 
presumed in the absence of either denial or actions in­
consistent with acceptance, no action of acceptance by 
Congress was necessary.



32

We wish to also direct the Court’s attention to the 
fact that the amendment to Section 255 became law on 
February 1, 1940, and that the amendment to Section 
451, Paragraph 3, of Title 18, was not amended until 
June 11, 1940, or approximately four months after the 
amendment to Section 255 became law, and that the 
government was given jurisdiction over all of the of­
fenses enumerated in Chapter 11 of Title 18 which oc­
curred not only on land over which the Government had 
acquired “ exclusive” jurisdiction but “ concurrent” juris­
diction as well. When this fact is borne in mind, it is 
unmistakably clear that the Government was given the 
right to prosecute violations of all of the offenses con­
tained in Chapter 11 on land acquired by the Govern­
ment over which the Government had not accepted ex­
clusive or partial jurisdiction in accordance with Sec­
tion 255 of Title 40.

It is the position of the Government in the instant 
case that it had concurrent jurisdiction with the State 
of Louisiana over the land within the confines of Camp 
Claiborne because the State of Louisiana in Act No. 12, 
Section 2, of 1892 (Section 2898, Dart’s Statutes), had 
reserved to itself the administration of its own criminal 
laws. Under this act of Louisiana, the Government had 
no right or power whatsoever under Section 255 of 
Title 40 to assume exclusive jurisdiction over the land 
unless and until it obtained from the State of Louisiana 
consent or cession of such jurisdiction. In this connec­
tion the Court’s attention is directed to the fact that 
Act No. 12, Section 2, of 1892 of the State of Louisiana 
was amended by Act No. 31 of 1942, subsequent to the 
violations being committed in this case, in which the 
State of Louisiana gives exclusive jurisdiction ta the



33

Government over any and all lands acquired by the 
Government in the State of Louisiana.

It is also the position of the Government that Section 
255, Title 40, has absolutely no application to the case 
at hand for the reason that it is not necessary under 
Section 451 of Title 18 for the Government to have ex­
clusive jurisdiction over land to prosecute the crimes 
set out in Chapter 11 of Title 18.

To support the argument of the appellants, it will be 
necessary for the Court to construe the word “ partial” 
as being synonymous with the word “ concurrent.”  This 
we believe will be impossible to do. We have made an 
extensive research of the law to determine what is meant 
by “partial jurisdiction.” We have been unable to find 
any such term identified as such in the references at 
hand. The word “ partial” is defined by Webster and 
Century Dictionaries as follows: pertaining to or affect­
ing a part, or being such in part only; incomplete; also, 
being a part; not general or universal; not total. “ Con­
current jurisdiction,” on the other hand, has been de­
fined by Corpus Juris (12 C. J. 395) as follows: “ That 
of several tribunals, as authorized to deal with the same 
subject matter. The term is usually applied to two or 
more courts. Although the term is usually applied to 
the rightful authority of courts, yet they are not lim­
ited to such use. On the contrary, they are broad enough 
to embrace also the exercise of both legislative and ex­
ecutive power.” The Government in exercising its con­
current jurisdiction over the crimes in Chapter 11 of 
Title 18 is full and complete. While it does not inter­
fere with the exercise by the state of its concurrent 
jurisdiction over state crimes committed on Government



34

owned lands, it is the only authority which can enforce 
the laws of the United States in such instances, and in 
so doing it is not hindered in any manner by the au­
thority of the State. Yet, while its power to administer 
and enforce such laws remains unhampered, the fact 
that the state has a similar right to enforce its own 
criminal laws gives each concurrent jurisdiction. In this 
regard attention is directed to the state statute, namely, 
Act No. 24 of 1878 (Dart’s Statutes, 1090), which de­
clares: “ Whoever shall commit a rape, shall, on convic­
tion thereof, suffer death.” Under and by virtue of con­
current jurisdiction, not only would the Government 
have the right to prosecute those guilty of rape com­
mitted within the confines of Camp Claiborne, but the 
state had a similar right to prosecute under its own 
statutes a similar violation.

It is inconceivable to think that the term exclusive 
jurisdiction could embrace “ concurrent jurisdiction.” 
“ Exclusive” is defined by Corpus Juris (23 C. J. 274) 
as follows: “ The word is derived from ‘ex,’ out, and 
‘claudere,’ to shut, and precludes the idea of co-exist- 
ence. In its usual and generally accepted sense, as given 
by Lexicographers, and in the ordinary speech of the 
people, it means possessed to the exclusion of others; 
possessed and enjoyed to the exclusion of others; de­
barred from participation or enjoyment; not including, 
admitting, or pertaining to any other; not to be taken 
into account; over and above; pertaining to the subject 
alone; individual; undivided; sole; opposed to ‘ inclu­
sive’.” And under the heading “ phrases”  the term “ ex­
clusive jurisdiction”  is included.



35

As has been pointed out above, the land on which the 
instant crime was committed was acquired by the Gov­
ernment for the use and benefit of the United States 
Department of Agriculture and was embraced in the 
Kisatchie National Forest. Before this land was acquired 
the State of Louisiana passed Act No. 90 of 1922, as 
amended by Act No. 71 of 1924 (Dart’s Statutes, 3329), 
which reads as follows:

“ 3329. Establishment of national forests.— The 
consent of the state of Louisiana is hereby given 
to the acquisition by the United States by purchase 
or gift of such land in Louisiana, as in the opinion 
of the federal government may be needed for the 
establishment of a national forest or forests in this 
region; provided that the state shall retain a con­
current jurisdiction with the United States in and 
over such lands so that civil process in all cases 
and such criminal process as may issue under the 
authority of the state against the person charged 
with a commission of any crime without or within 
the said jurisdiction may be executed thereon in 
like manner as before the passage of this act. 
Power is hereby conferred on congress to pass such 
laws as it may deem necessary to the acquisition 
as herein provided for incorporation in said na­
tional forest of such forests covered or cut-over 
lands lying in Louisiana as in the opinion of the 
federal government may be needed. The power is 
hereby conferred upon congress to pass such laws 
and to make or provide for the making of such 
rules and regulations of both civil and criminal na­
ture and provide punishment for violation thereof, 
as in its judgment may be necessary for the man­
agement, control and pyotection of such lands as may 
from time to time be acquired by the United States 
under the provisions of this section.”



36

Under this section, the State expressly retains con­
current jurisdiction with the Federal Government for 
the exercise of criminal jurisdiction over any land ac­
quired for forestry purposes, and in a like manner gives 
concurrent jurisdiction to the Federal Government.

In reviewing the jurisprudence concerning the juris­
diction of the Federal Government over crimes com­
mitted on lands acquired by it in the several states, it 
must be borne in mind that before June, 1940, at which 
time, by the amendment to Section 451, Paragraph 3, 
Title 18, the Federal Government was given the power 
to prosecute the crimes set forth in Chapter 11 on land 
over which it had concurrent jurisdiction, the Federal 
Government was only given jurisdiction to prosecute the 
violation of federal crimes on lands within its exclusive 
jurisdiction. However, in spite of this, certain questions 
arose and were decided which were analogous to certain 
points present in the instant case. The fact that the 
State of Louisiana did not give exclusive jurisdiction to 
the United States, but specifically reserved concurrent 
jurisdiction, gave no power to the Federal Government 
by which it could exercise exclusive jurisdiction.

In the case of United States vs. Stahl (Federal Case 
No. 16373), 27 Fed. Cas. 1288, the Court said:

“ In this case the defendant is indicted for mur­
der, alleged in the bill to have been committed in 
the District of Kansas, at a place under the sole 
and exclusive jurisdiction of the United States of 
America: to wit, at Fort Harker, on land occupied 
by the United States for a military post, and pur­
poses connected therewith. To this indictment, the 
defendant pleads to the jurisdiction of the court,



37

alleging that Fort Harker was established as a mili­
tary post in the year 1863, under the authority of 
the War Department; that no purchase of the land 
on which it was established had ever been made by 
the government of the United States with the assent 
of the State of Kansas; and that the consent of 
that State had never been given in any other mode 
to the exercise by the federal government of an ex­
clusive jurisdiction over the land included within 
the post. To this plea there is a demurrer, which 
we are now to decide.

“  . . .  it is clear that in order to withdraw from 
a state a jurisdiction which it had possessed and 
exercised and confer it on the general government, 
the consent of the former was made a prerequisite. 
This is the material point aimed at by the provision 
of the Constitution.

“  . . . this jurisdiction having been vested in 
the State of Kansas by the act admitting her into 
the Union, and never divested, it can not now belong 
to the United States.”

The Supreme Court of the United States, in comment­
ing upon the concurrent jurisdiction of the national gov­
ernment with that of the state, said in the case of 
Ex parte Siebold, 100 U. S. 371, 394, 395, as follows, 
to w it:

“ . . .  It is argued that the preservation of peace 
and good order in society is not within the powers 
confided to the government of the United States, 
but belongs exclusively to the States. Here again we 
are met with the theory that the government of the 
United States does not rest upon the soil and terri­
tory of the country. We think that this theory is 
founded on an entire misconception of the nature 
and powers of that government. We hold it to be



38

an incontrovertible principle that the government of 
the United States may, by means of physical force, 
exercised through its official agents, execute on 
every foot of American soil the powers and func­
tions that belong to it. This necessarily involves 
the power to command obedience to its laws, and 
hence the power to keep the peace to that extent.

“ This power to enforce its laws and to execute 
its functions in all places does not derogate from 
the power of the State to execute its laws at the 
same time and in the same places. The one does 
not exclude the other, except where both cannot be 
executed at the same time. In that case, the words 
of the Constitution itself show which is to yield. 
‘This Constitution, and all laws which shall be made 
in pursuance thereof, . . . shall be the supreme 
law of the land.’

“ This concurrent jurisdiction which the national 
government necessarily possesses to exercise its 
powers of sovereignty in all parts of the United 
States is distinct from that exclusive power which, 
by the first article of the Constitution, it is au­
thorized to exercise over the District of Columbia, 
and over those places within a State which are pur­
chased by consent of the legislature thereof, for the 
erection of forts, magazines, arsenals, dock-yards, 
and other needful buildings. There its jurisdiction 
is absolutely exclusive of that of the State, unless, 
as is sometimes stipulated, power is given to the 
latter to serve the ordinary process of its courts 
in the precinct acquired.

“ Without the concurrent sovereignty referred to, 
the national government would be nothing but an 
advisory government. Its executive power would be 
absolutely nullified.”



I

Again, on the question of concurrent jurisdiction, the 
Supreme Court of the United States in the case of 
Railway Company vs. Whitten’s Administrator, 80 U. 
S. 270, 288, the Court said:

“ In some cases, from their character, the
judicial power is necessarily exclusive of all state 
authority; in other cases it may be made so at the 
option of Congress, or it may be exercised concur­
rently with that of the States.”

In the case of James, State Tax Commissioner, vs. 
Dravo Contracting Company, 302 U. S. 134, 147-149 
(1937), the United States Supreme Court, through Mr. 
Chief Justice Hughes as its organ, said:

“ It is not questioned that the State may refuse 
its consent and retain jurisdiction consistent with 
the governmental purpose for which the property 
was acquired. The right of eminent domain inheres 
in the Federal Government by virtue of its sov­
ereignty and thus it may regardless of the wishes 
either of the owners or of the States, acquire the 
lands which it needs within their borders. Kohl v. 
United States, 91 U. ,S. 367, 371, 372. In that 
event, as in cases of acquisition by purchase with­
out consent of the State, jurisdiction is dependent 
upon cession by the State and the State may qualify 
its cession by reservations not inconsistent with the 
governmental uses. Story on the Constitution, Vol. 
2, Sec. 1227; Kohl v.' United States, supra, p. 374; 
Fort Leavenworth R. Co. v. Lowe, spra; Surplus 
Trading Co. v. Cook, supra; United States v. Un- 
zeuta, supra. The result to the Federal Government 
is the same whether consent is refused and cession 
is qualified by a reservation of concurrent jurisdic­
tion, or consent to the acquisition is granted with a 
like qualification. As the Solicitor General has

39



40

pointed out, a transfer of legislative jurisdiction 
carries with it not only benefits but obligations, 
and it may be highly desirable, in the interest both 
of the national government and of the State, that 
the latter should not be entirely ousted of its juris­
diction. The possible importance of reserving to the 
State jurisdiction for local purposes which involve 
no interference with the performance of govern­
mental functions is becoming more and more clear 
as the activities of the Government expand and 
large areas within the States are acquired. There 
appears to be no reason why the United States 
should be compelled to accept exclusive jurisdiction 
or the State be compelled to grant it in giving its 
consent to purchases.

“ Normally, where governmental consent is essen­
tial, the consent may be granted upon terms appro­
priate to the subject and transgressing no constitu­
tional limitation. Thus, as a State may not be sued 
without its consent and ‘permission is altogether 
voluntary/ it follows ‘that it may prescribe the terms 
and conditions on which it consents to be sued.’ 
Beers v. Arkansas, 20 How. 527, 529; Smith v. 
Reeves, 178 U. S. 436, 441, 442. Treaties of the 
United States are to be made with the advice and 
consent of the Senate, but it is familiar practice 
for the Senate to accompany the exercise of this 
authority with reservations. Hyde, International 
Law, Vol. 2, .Sec. 519. The Constitution provides 
that no State without the consent of Congress shall 
enter into a compact with another State. It can 
hardly be doubted that in giving consent Congress 
may impose conditions. See Arizona v. California, 
292 U. S. 341, 345.

“ Clause 17 contains no express stipulation that 
the consent of the State must be without reserva­
tions. We think that such a stipulation should not 
be implied. We are unable to reconcile such an im-



41

plication with the freedom of the State and its ad­
mitted authority to refuse or qualify cessions of 
jurisdiction when purchases have been made with­
out consent or property has been acquired by con­
demnation. In the present case the reservation by 
West Virginia of concurrent jurisdiction did not 
operate to deprive the United States of the enjoy­
ment of the property for the purposes for which 
it was acquired, and we are of the opinion that the 
reservation was applicable and effective.”

Closely following its opinion in the Dravo case, supra, 
the Supreme Court had occasion to pass upon a similar 
question in the case of Silas Mason Company et al. vs. 
Tax Commission of Washington et al., 302 U. S. 186, 
197, 203, 207 (1937), saying:

“ No question is presented as to the constitutional 
authority of Congress to provide for this enterprise 
or to acquire the lands necessary or appropriate for 
that purpose. There is no contention that the State 
may interfere with the conduct of the enterprise. 
The question of exclusive territorial jurisdiction is 
distinct. That question assumes the absence of any 
interference with the exercise of the functions of 
the Federal Government and is whether the United 
States has acquired exclusive legislative authority 
so as to debar the State from exercising any legisla­
tive authority, including its taxing and police power, 
in relation to the property and activities of indi­
viduals and corporations within the territory. The 
acquisition of title by the United States is not suffi­
cient to effect that exclusion. It must appear that 
the State, by consent or cession, has transferred to 
the United States that residuum of jurisdiction 
which otherwise it would be free to exercise.

“ Appellants contend that exclusive jurisdiction as 
to these lands vested ipso facto in the Federal Gov-



42

ernment by the operation of Clause 17, Sec. 8, Arti­
cle I, of the Federal Constitution, which provides 
that the Congress shall have power ‘to exercise ex­
clusive legislation’ over ‘all places purchased by the 
consent of the legislature of the State in which 
the same shall be, for the erection of forts, maga­
zines, arsenals, dock-yards, and other needful build­
ings.’ Considering this provision in James v. Dravor 
Contracting Co., supra, we construed the phrase 
‘other needful buildings’ to embrace locks and dams 
and whatever structures are found to be necessary 
in the performance of the functions of the Federal 
Government. We also concluded that Clause 17 
should not be construed as implying a stipulation 
that the consent of the State to purchases must be 
without reservations. We were unable to reconcile 
such an implication with the freedom of the State 
and its admitted authority to refuse or qualify ces­
sions of jurisdiction when purchases have been 
made without consent or property has been acquired 
by condemnation.

“ Even if it were assumed that the state statute 
should be construed to apply to the federal acquisi­
tions here involved, we should still be met by the 
contention of the Government that it was not com­
pelled to accept, and has not accepted, a transfer 
of exclusive jurisdiction. As such a transfer rests 
upon a grant by the State, through consent or ces­
sion, it follows, in accordance with familiar princi­
ples applicable to grants, that the grant may be ac­
cepted or declined. Acceptance may be presumed in 
the absence of evidence of a contrary intent, but 
we know of no constitutional principle which com­
pels acceptance by the United States of an exclusive 
jurisdiction contrary to its own conception of its 
interests. The mere fact that the Government needs 
title to property within the boundaries of a State, 
which may be acquired irrespective of the consent 
of the State (Kohl v. United States, 91 U. S. 367,



43

371, 372), does not necessitate the assumption by 
the. Government of the burdens incident to an ex­
clusive jurisdiction. We have frequently said that 
our system of government is a practical adjustment 
by which the national authority may be maintained 
in its full scope without unnecessary loss of local 
efficiency. In acquiring property, the federal func­
tion in view may be performed without disturbing 
the local administration in matters which may still 
appropriately pertain to state authority. In our 
opinion in James v. Qravo Contracting Co., supra, 
we observed thst the possible importance of reserv­
ing to the State jurisdiction for local purposes 
which involve no interference with the performance 
of governmental functions is becoming more and 
more clear as the activities of the Government ex­
pand and large areas within the States are ac­
quired. And we added that there appeared to be 
no reason why the United States should be com­
pelled to accept exclusive jurisdiction or the State 
be compelled to grant it in giving its consent to 
purchases.” Italics ours.)

In still another case decided by the Supreme Court of 
the United States in 1937, namely, Collins et al. vs. 
Yosemite Park and Curry Company, 304 U. S. 518, 528- 
530, the Court, in considering the right of the Federal 
Government to acquire less than exclusive jurisdiction 
over land acquired by it, said:

“ The State urges the constitutional inability of 
the National Government to accept exclusive juris­
diction of any land for purposes other than those 
specified in Clause 17, Sec. 8, Article I, of the Con­
stitution. This clause has not been strictly con­
strued. This Court at this term has given full con­
sideration to the constitutional power of the United 
States to acquire land under Clause 17 without tak­
ing exclusive jurisdiction. In that case it was said:



44

‘Clause 17 contains no express stipulation that the 
consent of the State must be without reservations. 
We think that such a stipulation should not be im­
plied. We are unable to reconcile such an implica­
tion with the freedom of the State and its admitted 
authority to refuse or qualify cessions of jurisdiction 
when purchases have been made without consent or 
property has been acquired by condemnation.’ The 
clause is not the sole authority for the acquisition 
of jurisdiction. There is no question about the 
power of the United States to exercise jurisdiction 
secured by cession, though this is not provided for 
by Clause 17. And it has been held that such a ces­
sion may be qualified. It has never been necessary, 
heretofore, for this Court to determine whethor or 
not the United States has the constitutional right 
to exercise jurisdiction over territory, within the 
geographical limits of a State, acquired for pur­
poses other than those specified in Clause 17. It 
was raised but not decided in Arlington Hotel v. 
Fant, 278 U. S. 439, 454. It was assumed without 
discussion in Yellowstone Park Transportation Co. 
v. Gallatin County, 31 F. (2d) 644.

“ On account of the regulatory phrases of the 
Alcoholic Beverage Control Act of California, it is 
necessary to determine that question here. The 
United States has large bodies of public lands. 
These properties are used for forests, parks, ranges, 
wild life sanctuaries, flood control, and other pur­
poses which are not covered by Clause 17. In Silas 
Mason Co. v. Tax Commission of Washington, 302 
U. S. 186, we upheld in accordance with the ar­
rangements of the State and National Governments 
the right of the United States to acquire private 
property for use in ‘the reclamation of arid and 
semiarid lands’ and to hold its purchases subject to 
state jurisdiction. In other instances, it may be 
deemed important or desirable by the National 
Government and the State Government in which the



45

particular property is located that exclusive jurisdic­
tion be vested in the United States by cession or 
consent. No question is raised as to the authority 
to acquire land or provide for national parks. As the 
National Government may, ‘by virtue of its sover­
eignty,’ acquire lands within the borders of states 
by eminent domain and without their consent, the 
respective sovereignties should be in a position to 
adjust their jurisdictions. There is no constitutional 
objection to such an adjustment of rights. It follows 
that jurisdiction less than exclusive may be granted 
the United States. The jurisdiction over the Yosemite 
National Park is exclusively in the United States 
except as reserved to California, e. g., right to tax, 
by the Act of April 15, 1919. As there is no reserva­
tion of the right to control the sale or use of alco­
holic beverages, such regulatory provisions as are 
found in the Act under consideration are unenforce­
able in the park.”

All of the above cited cases were decided prior to the 
amendment to Section 255 of Title 40, on February 1, 
1940. However, the expressions of the Supreme Court 
have been followed since the amendment in the case of 
United States vs. Thompson 41 Fed. Sup. 13, 14, 15, 
in which case an interpretation of this amendment was 
made by the District Court for the Eastern District of 
Washiugton in September, 1941. The District Judge, 
in passing upon the question, said:

“ If this case turned upon the question of exclu- 
clusive jurisdiction, I would be compelled to accept 
the logic of the defendant’s position. We of the West 
are more fully cognizant of the necessity of prevent­
ing encroachments upon the jurisdiction of our 
States than are others who live in states where 
the public domain does not constitute such a large 
percentage of the total area. As was said by Chief



46

Justice Hughes in James v. Dravo Contracting Co., 
302 U. S. 134, 58 S. Ct. 208, 215, 82 L. Ed. 155, 
114 A. L. R. 318:

“  ‘As the Solicitor General has pointed out, a 
transfer of legislative jurisdiction carries with it 
not only benefits, but obligations, and it may be 
highly desirable, in the interest both of the national 
government and of the state, that the latter should 
not be entirely ousted of its jurisdiction. The pos­
sible importance of reserving to the state jurisdic­
tion for local purposes which involve no interfer­
ence with the performance of governmental func­
tions is becoming more and more clear as the activi­
ties of the government expand and large areas 
within the states are acquired.’

“ Again, in Mason Co. v. Tax Commission of 
Washington, 302 U. S. 186, 58 ,S. Ct. 233, 244, 82 
L. Ed. 187, Chief Justice Hughes said this: ‘The 
mere fact that the Government needs title to prop­
erty within the boundaries of a State, which may 
be acquired irrespective of the consent of the State 
(Kohl v. United States, 91 U. S. 367, 371, 372, 23 
L. Ed. 449), does not necessitate the assumption 
by the Government of the burdens incident to an 
exclusive jurisdiction. We have frequently said that 
our system of government is a practical adjustment 
by which the national authority may be maintained 
in its full scope without unnecessary loss of local 
efficiency. In acquiring property, the federal func­
tion in view may be performed without disturbing 
the local administration in matters which may still 
appropriately pertain to state authority.’

“ The Congress, itself, recognized this fact last 
year with the adoption of the Act of October 9, 
1940, Public No. 825, 76th Congress, 3d Session, 
U. S. C. A., Title 40, Sec. 255, which reads as 
follows:



47

“  ‘Notwithstanding any other provision of law, 
the obtaining of exclusive jurisdiction in the United 
States over lands or interests therein which have 
been or shall hereafter be acquired by it shall not 
be required; but the head or other authorized offi­
cer of any department or independent establish­
ment or agency of the Government may, in such 
cases and at such times as he may deem desirable, 
accept or secure from the State in which any lands 
or interests therein under his immediate jurisdic­
tion, custody, or control are situated, consent to or 
cession of such jurisdiction, exclusive or partial, 
not theretofore obtained, over any such lands or in­
terests as he may deem desirable and indicate ac­
ceptance of such jurisdiction on behalf of the United 
States by filing a notice of such acceptance with 
the Governor of such State or in such other man­
ner as may be prescribed by the laws of the State 
where such lands are situated. Unless and until the 
United States has accepted jurisdiction over lands 
hereafter to be acquired as aforesaid, it shall be 
conclusively presumed that no such jurisdiction has 
been accepted.’

“ However, this is not a question of exclusive 
legislative jurisdiction. The Constitution, Article 
IV, Section 3, Clause 2, commits to Congress the 
power ‘to dispose of and make all needful Rules 
and Regulations’ respecting the lands of the United 
States. Utah Power & Light Company v. United 
-States, 243 U. S. 389, 37 S. Ct. 387, 61 L. Ed. 791. 
It is for the Congress to determine how the public 
lands shall be administered.

“ ‘The courts cannot compel it to set aside the 
lands for settlement, or to suffer them to be used 
for agricultural or grazing purposes, nor interfere 
when, in the exercise of its discretion, Congress 
establishes a forest reserve for what it decides to 
be national and public purposes.’ Light v. United



48

States, 220 U. S. 523, 31 S. Ct. 485, 488, 55 L. 
Ed. 570.

“ That power of Congress may be exercised through 
the vesting in the Secretary of Agriculture of the 
right to make the needed rules and regulations so 
as to effectuate the legislative policy. United States 
v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. 
Ed. 563.”

In the light of the foregoing decisions, it is clear that 
the Federal Government does not have to assume exclu­
sive jurisdiction over land acquired by it in the several 
states of the Union in order for it to exercise its con­
current authority to prosecute the violations of crimes 
made so by the laws and statutes of the United States. 
It is therefore respectfully submitted that the United 
States District Court for the Western District of Louis­
iana had jurisdiction to try, convict and sentence the 
appellants in the instant case and that this assignment 
of error should not be sustained.

On Application for Writs of Habeas Corpus 
By Appellants

As pointed out above, appellants have filed an appli­
cation for writs of habeas corpus in which they re­
quested this Court to issue said writs on the ground that 
the District Court in which they were tried, convicted 
and sentenced did not have exclusive jurisdiction over 
the case. An order to show cause why signed by His 
Honor, Judge Samuel H. Sibley, returnable on Febru­
ary 10, 1943. As a result of said order, the Government 
duly appeared on said date and filed an exception to the 
jurisdiction of the United States Circuit Court of Ap­
peals for the Fifth Circuit to grant or hear such an



49

application, and after preserving all rights thereunder 
filed an answer in opposition to the claims of the ap­
pellants in their petition for a writ.

In Section 452, Title 28, U. S. C. A., it is provided:

“ The several justices of the Supreme Court and 
the several judges of the circuit courts of appeal 
and of the district courts, within their respective 
jurisdictions, shall have power to grant writs of 
habeas corpus for the purpose of an inquiry into the 
cause of restraint of liberty. A circuit judge shall 
have the same power to grant writs of habeas corpus 
within his circuit that a district judge has within 
his district; and the order of the circuit judge shall 
be entered in the records of the district court of the 
district wherein the restraint complained of is had”  
(Italics ours.)

However, in Section 463 of the same title it is pro­
vided as follows:

“ (a) By circuit courts of appeal; jurisdiction of 
circuit judges to issue writ. In a proceeding in 
habeas corpus in a district court, to before a dis­
trict judge or a circuit judge, the final order shall 
be subject to review, on appeal, by the circuit court 
of appeals of the circuit wherein the proceeding is 
had; provided, however, that there shall be no right 
of appeal from such order in any habeas corpus 
proceeding to test the validity of a warrant of re­
moval issued pursuant to the provisions of Section 
591 of Title 18 or the detention pending removal 
proceedings. A circuit judge shall have the same 
power to grants writs of habeas corpus within his 
circuit that a district judge has within his district. 
The order of the circuit judge shall be entered in 
the records of the district court of the district 
wherein the restraint complained of is had.”  (Italics



50

ours.) As amended June 28, 1938, c. 806, 52 Stat. 
1232.

In support of the Government’s exception to the juris­
diction of this court, we direct attention to the case of 
Craig vs. Hecht, 263 U. S. 255, in which case the ques­
tion of writs of habeas corpus was discussed relative to 
their applicability. This case held that when a defendant 
found himself aggrieved by a decree, his remedy by ap­
peal was plain and it was not necessary to have re­
course to a writ of habeas corpus, and that if Congress 
had intended to abolish the right of appeal from the 
decisions of district judges in habeas corpus cases, it 
would doubtless have done so in plain and direct terms. 
The fact that the right of appeal was not thus abolished 
furnishes a persuative inference that Congress intended 
to designate a court to hear and determine such appeal 
and that a writ of habeas corpus cannot be utilized for 
the purpose of proceedings in error.

In the case of Ferguson vs. Swope, Warden, 109 Fed. 
(2d) 152 (1940), the Ninth Circuit Court of Appeals 
held that the application for a writ of habeas corpus is 
without merit in that court for the reason that said 
court can only issue writs of habeas corpus in aid of 
its appellate jurisdiction. The application should be made 
in the first instance to the United States District Court. 
(See, also, cases of Smith vs. Johnson, 9th Circuit Court, 
109 Fed. (2d) 152; Whitaker vs. Johnston, 85 Fed. 
(2d) 199).

In the case of United States vs. Hill, C. C. A. (3d), 
71 Fed. (2d) 159, the Circuit Court of Appeals for the 
Third Circuit, in passing upon the propriety of enter-



51

taining an original application for a writ of habeas 
corpus when application might have been made to a 
judge of an appropriate district court, held as follows:

“ 28 U. S. C. A., Sec. 452, confers power upon the 
judges of the Circuit Court of Appeals to grant 
writs of habeas corpus. This does not mean, how­
ever, that a judge of the Circuit Court of Appeals 
is bound to entertain such application when it 
might have been made to a judge of the appropriate 
District Court. In the instant case there were no 
circumstances alleged which would make it necessary 
for a judge of the Circuit Court of Appeals to allow 
the writ, since the appellant might have applied to 
either of two District Judges within the Middle 
District of Pennsylvania, where the appellant is 
confined. Neither is there an allegation in the peti­
tion that an application had been made to either 
of these judges. A refusal by Judge Woolley to 
take jursidiction did not deprive the appellant from 
making an application to a judge of that district. 
Moreover, we find no merit in the grounds relied 
upon by the appellant in the petition for writ of 
habeas corpus. The appellant was tried and sen­
tenced upon an indictment charging him with viola­
tion of 18 U. S. C. A., Sec. 338, which forbids the 
putting of a letter or packet in the post office or 
the taking out of a letter or packer from the post 
office in the furtherance of a fraudulent scheme. 
Each individual act of taking out or putting in a 
letter in furtherance of a scheme to defraud is a 
distinct and separate violation of the statute. For 
that reason, each violation may be separately pun­
ished. Durland v. United States, 161 U. S. 306, 16 
S. Ct. 508, 40 L. Ed. 709; In re Henry, 123 U. S. 
372, 8 S. Ct. 142, 31 L. Ed. 174; Spirou v. United 
States (C. C. A .), 24 F. (2d) 796; Francis v. United 
States (C. C. A .), 152 F. 155.”



52

A case which is similar in some respects to the instant 
case is that of Bowen vs. Johnson, Warden, 306 U. S. 
19. The Supreme Court of the United States had occa­
sion to pass upon an application for a writ of habeas 
corpus involving a question of jurisdiction. However, the 
petition for a writ of habeas corpus was presented to the 
district judge in whose district he was confined. Atten­
tion is directed to the fact that this case arose before 
Section 451 of Title 18, U. S. C. A., was amended, in 
June, 1940, and that it did not contain the concurrent 
jurisdiction provision, which is necessarily controlling in 
the case at bar. In that case the Supreme Court said:

“ Where on the face of the record the District 
Court has jurisdiction of the offense and of the 
defendant and the defendant contends that on the 
facts shown the crime was not committed at a 
place within the jurisdiction of the United States, 
we have held that the judgment is one for review 
by the Circuit Court of Appeals in error proceed­
ings and that the writ of habeas corpus is properly 
refused. Toy Toy v. Hopkins, 212 U. S. 542, 549. 
And, on removal proceedings, we have observed that 
in a case where the question ‘whether the locus of 
the alleged crime was within the exclusive jurisdic­
tion of the United States demands consideration of 
many facts and seriously controverted questions of 
law,’ these matters ‘must be determined by the court 
where the indictment was found,’ and that ‘the regu­
lar course may not be anticipated by alleging want 
of jurisdiction and demanding a ruling thereon in 
a habeas corpus proceeding.’

“ It must never be forgotten that the writ of ha­
beas corpus is the precious safeguard of personal 
liberty and there is no higher duty than to main­
tain it unimpaired. Ex parte Lange, supra. The rule 
requiring resort to appellate procedure when the



53

trial court has determined its own jurisdiction of 
an offense is not a rule denying the power to issue 
a writ of habeas corpus when it appears that^never- 
theless the trial court was without jurisdiction. The 
rule is not one defining power, but one which re­
lates to the appropriate exercise of power.”

It is to be remembered that in all of the instances 
where petitions for writ of habeas corpus have been ac­
cepted the cases presented unusual and exceptional cir­
cumstances, which certainly are not present in the in­
stant case. The entire record of the proceedings in this 
case, which was had in the District Court, is now on 
file with this court, and in that record is contained evi­
dence and exhibits which conclusively establish the con­
current jurisdiction of the District Court. Furthermore, 
all the rights of the appellants have been preserved by 
the assignment of error presently under discussion, and 
it is not necessary for this Court to consider an appli­
cation for a writ of habeas corpus in order for it to 
pass upon the question as to whether or not the District 
Court had jurisdiction.

The case which is cited and relied upon by the ap­
pellants in support of their petition for a writ of habeas 
corpus is that of Adams vs. United States, 87 L. Ed. 
209, decided December 21, 1942, by the Supreme Court 
of the United States, which case was appealed from the 
United States Circuit Court of Appeals for the Second 
Circuit and reported in 126 Fed. (2d) 774. The instant 
case is distinguishable from the Adams case in that ex­
ceptional circumstances were involved because of the 
fact that the appeal proved by the appellant did not 
contain a transcript of the record and the questions pre­
sented to the Circuit Court were not supported by a bill



54

of exceptions or anything else upon which the Circuit 
Court could intelligently pass upon. Even in the Adams 
case the Supreme Court said that the writ of habeas 
corpus should not do service for an appeal and that this 
rule must be strictly observed if orderly appellate pro­
cedure is to be maintained. It appears that unless un­
usual and exceptional circumstances exist which would 
prejudice the rights of appellants, petitions for writs of 
habeas corpus should not be entertained. Irrespective 
of how unusual or exceptional a case may be, it is 
necessary under Section 463, Title 28, supra, that the 
circuit judge who accepts a petition for a writ of ha­
beas corpus do so as a single judge and not as the organ 
of the circuit court in its entirety. This is substan­
tiated by the fact that the petition and record thereof 
are to be filed in the records of the district court, and 
that after a hearing has been had before the circuit 
judge accepting said petition an appeal is to be taken 
to the circuit court sitting as such. Therefore, if the ap­
plication for a writ of habeas corpus is to be considered 
in this case, it will be necessary that Judge Sibley, who 
issued the order to show cause, should sit in the ca­
pacity, so to speak, of a district judge, and the plead­
ings should be necessarily recorded in the District Court 
of the United States for the Eastern District of Louis­
iana. In this respect, it is submitted that the case of 
United States ex rel. Bernstein vs. Hill, Warden, supra, 
should be followed, because no application for a writ was 
made to the district judges in the Eastern District of 
Louisiana, who were available and within whose juris­
diction the appellants were and are confined.

The appellants’ argument in their brief that, in view 
of the fact that their petition for a writ of habeas



55

corpus is limited to one point, i. e., that the court did 
not have jurisdiction to try and convict appellants, their 
application for a writ falls within the Adams case. This 
is utterly without merit because their appeal is based 
on several points, and the Supreme Court, in comment­
ing upon the single point raised by the petition for a 
writ of habeas corpus in the Adams case, clearly recog­
nized that the Circuit Court was justified in conclud­
ing that it would not be fair to make petitioner state his 
whole appeal on the single point raised by the writ 
inasmuch as McCann was urging a number of grounds 
for the reversal of his conviction. Appellants’ conten­
tion might have some foundation if the only point, in­
cluding his appeal, under various assignments of error 
was on the single point raised in his application for 
a writ.

The other cases cited in appellants’ memorandum 
brief in support of their petition for a writ of habeas 
corpus have no bearing on this case, other than the case 
of Bowen vs. Johnstonsupra, which we have previously 
cited, inasmuch as those cases are based on applications 
for writs of habeas corpus by petitioners whose rights 
of appeal had expired and their applications were ad­
dressed to the district courts in whose district they were 
incarcerated. This Court is no doubt familiar with cases 
of that type in which prisoners serving sentences in the 
various federal institutions have resorted quite frequently 
to application for writs in their attempt to be released 
from custody.

The reference in appellants’ memorandum brief to 
the case of Pettibone vs. United States, 148 U. S. 196, 
in which the Supreme Court held that the courts of the



56

United States have no jurisdiction over offenses not 
made punishable by the Constitution, laws or treaties 
of the United States, has no application here for the rea­
son that in Chapter 11 certain specific crimes are made 
violations of the federal law when committed on land 
acquired by the Government and over which it has a 
concurrent jurisdiction. The crime for which the ap­
pellants were convicted in this case is one of the crimes 
made punishable by the laws of the Federal Government. 
In this connection, the cases cited under their contention 
that in order for the district court to have jurisdiction 
over the crime of rape, as charged in the indictment in 
the instant case, it must first be shown that the crime 
occurred in lands acquired by the United States, and 
“ under the exclusive or concurrent jurisdiction” of the 
United States, have no application here for the reason 
that all of said cases, as pointed out above, were decided 
prior to the amendment to Section 451, Title 18, on 
June 11, 1940.

It is therefore respectfully submitted that this Court, 
first, has no jurisdiction to grant the writs of habeas 
corpus applied for by the appellants, and, second, that 
under the facts as contained in the original record now 
on file with this court, it is conclusive that the United 
States District Court for the Western District of Louis­
iana had concurrent jurisdiction over the land on which 
the crime of rape by said appellants was committed.

Assignment of Error No. 3

Although appellants under this assignment of error 
allege that the Court erred in overruling the motions 
to quash the indictment, no argument has been advanced



57

in their brief supporting this contention, and we see no 
reason to argue this point because of that fact, and for 
the further reason that no bill of exception was made to 
the ruling of the Court after it ordered the Govern­
ment to show actual rape of the victim on the part of 
defendant Mitchell, the defendants Adams and Bordenave 
being accessories to the fact and supporting, assisting, 
aiding and abetting, which, under the federal law, made 
them principals under the indictment and are so al­
leged. (R. 36.)

It is respectfully submitted that this assignment of 
error has no merit and should not be sustained.

Assignment of Error No. 4

Under this assignment of error the appellants allege 
that the Court erred in overruling the motion for a 
severance filed by defendant-appellant Adams.

It has long been the jurisprudence of this country 
that where two or more persons are jointly charged, 
in the same indictment, with a capital offense, they have 
no right by law to be tried separately without the con­
sent of the prosecutor, but such separate trial is a mat­
ter to be allowed in the discretion of the Court. (See 
U. S. vs. Marchant and Colson, 25 U. S. 480.)

This Court, in the case of Ginsberg vs. United States, 
96 Fed. (2d) 433, adhered to the ruling in the Marchant 
and Colson case, supra, when it held as follows:

“ Severance in the federal courts is not a right, 
but rests in the court’s discretion. No abuse of dis­
cretion appears here. U. S. vs. Marchant and Col-



58

son, 12 Wheat. 480, 6 L. Ed. 700; Ball vs. U. S., 
163 U. S. 662, 16 S. Ct. 1192, 41 L. Ed. 300.”

The objection raised to the denial for a severance 
in this case was based on the proposition that the de­
fendants would be prejudiced by the introduction of their 
separate statements and admissions if they were tried 
together. Their fears were unfounded for the reason that 
the Court instructed the jury at the time the written 
admissions of the defendants were introduced as fol­
lows, to wit:

“ Gentlemen, the law permits the introduction of 
statements made by persons who are charged with 
an offense like this if that statement tends to in­
criminate or support the contention of the prosecu­
tion as to what was done by the accused. In other 
words, the law assumes that a man will not say 
anything that tends to charge him with a crime 
or offense unless there is some basis for it, because 
ordinarily people do not make statements accusing 
themselves of a crime, or incriminating themselves, 
or connecting themselves with a crime. Before the 
Government can introduce or use that statement the 
Government must lay its foundation to introduce it 
by showing that there has been no coercion, or re­
ward, or undue influence, or anything of that sort 
used by any officer of the Government or anyone 
else, to induce the person making the statement to 
make the statement. Testimony has been taken on 
that question out of your presence, because it is 
a question for the Court and not for you to decide, 
in other words, it is a question both of fact and law 
that the Court has to decide, because it does not 
bear directly on the question of the guilt or inno­
cence of the accused, that is, whether the statement 
is admissible in evidence or not.



59

“ Now then, when it is admitted in evidence, then 
it is your duty to take that statement and use it 
for whatever weight you think it is entitled to re­
ceive as bearing upon the question of fact with 
regard to the guilt or innocence of the man who 
makes the statement.

“ If one of the defendants has made a statement 
and made that statement out of the presence of the 
other accused, that statement is admissible, and 
should be weighed and considered only against the 
one who made the statement. In other words, taking 
each of these individuals, and as to the statement 
which is supposed to have been made by him, that 
statement would be admissible only as against  ̂the 
defendant making it, and would not be admissible, 
and could not be considered as against the other 
two.” (R. 331, 332.)

Furthermore, although each defendant in his separate 
statement and admission gave information concerning 
the actual commission of rape on the victim of not only 
himself but the other two defendants as well, the Court 
did not permit the jury to receive such admissions, ex­
cept in the statement of Mitchell, who was charged in 
the indictment with the crime of rape. The commission 
of rape by Adams and Bordenave was not permitted to 
go to the jury either from their statements or from 
other evidence. In other words, under the ruling of the 
Court, the only act of rape that was permitted to go 
to the jury was the act of rape committed by Mitchell 
alone. The agent of the Federal Bureau of Investigation, 
who read the appellants’ statements and admissions, was 
prevented by the Court from reading that portion of 
the statements and admissions which referred to the act 
of rape being committed by Adams and Bordenave. The 
jury did not at any time have access,to the original



60

statements and admissions made by the appellants other 
than what was read to them by the agent of the Federal 
Bureau of Investigation at the time he testified on the 
witness stand. (R. 299, 319, inclusive.)

Under the facts and circumstances as above outlined, 
it is respectfully submitted that the appellants’ assign­
ment of error No. 4 is without merit and should not 
be sustained.

Assignment of Error No. 5

Under this assignment of eror, the appellants allege 
that the Court erred in overruling the motion for a con­
tinuance filed by defendant-appellant Bordenave. Again, 
the appellants in their brief make no argument under 
this assignment of error, and inasmuch as they have 
abandoned same we do not feel that we are compelled 
to argue the matter.

It is respectfully submitted that this assignment of 
error is without merit and should not be sustained.

Assignment of Error No. 6

Under this assignment of error the appellants allege 
that the Court erred in admitting in evidence the al­
leged confessions and statement of the defendants and 
appellants. We have already covered this point in our 
argument under Assignment of Error No. 4, and respect­
fully submit that said argument covers the contention 
of appellants here.

It is respectfully submitted that this assignment of 
error is without merit and should not be sustained.



61

Assignment of Error No. 7

Under this assignment of error the appellants allege 
that the Court erred in refusing to admit the evidence 
of Dr. William G. McGuffin to the fact that the prosecut­
ing witness, Hattie Rose Mason, was infected with a 
venereal disease and could not bear children, and at the 
time of his examination of the said witness, thirty hours 
after the alleged crime of rape, that the prosecuting 
witness was very composed and complacent and related 
her account of the transaction without feeling or ex­
citement of any kind.

In their brief the appellants do not argue the point 
about the refusal of the Court to admit the evidence of 
Dr. McGuffin to the fact that the prosecuting witness 
was infected with a venereal disease and could not bear 
children. In this regard we respectfully refer the Court 
to the testimony of Dr. McGuffin and the rulings made 
by the Court as substantiation of the fact that the 
Court did not err in not permitting such testimony to 
go before the jury. No attempt was ever made nor was 
there any intimation or insinuation that the victim, 
Hattie Rose Mason, was not respectable. Her testimony 
clearly shows that she had been married at the age of 
seventeen and was subsequently divorced from her hus­
band and had come to Camp Claiborne to see her fiance, 
who had been inducted into the army prior thereto. Dr. 
McGuffin’s testimony was to the effect that when he 
examined her after the rape he found her with an old 
chronic venereal disease infection, i. e., gonorrhea, and 
that she could have possibly gotten same from having 
intercourse with her former husband two years prior 
to the time he had examined her. (R. 344-346, inclusive.)



62

Such evidence was not competent to show any previous 
loose morals on the part of the victim, and there was 
no attempt made by the defense, in any manner whatso­
ever, to impeach the victim as a witness, having laid no 
foundation for the same at the time she was cross-ex­
amined by appellants’ counsel, nor was anything inti­
mated by any other circumstances which entered into 
the case. The jurisprudence in the leading cases on the 
subject clearly hold that to impeach a prosecuting wit­
ness it is necessary for her general reputation to be 
introduced and that previous other specific acts of sexual 
intercourse with various and sundry parties are not 
admissible in those cases where there was no evidence 
showing or tending to show that the defendants had 
sexual intercourse by and with the consent of the state’s 
witness. The principles laid down in these cases hold 
that previous acts of sexual intercourse with a defendant 
are only admissible for the purpose of determining 
whether or not the victim gave her consent in cases in­
volving carnal knowledge. Such circumstances do not 
exist here and have no foundation whatsoever for any 
such illusion to be made. Without burdening the Court 
with lengthy excerpts from cases touching this point, we 
respectfully refer the Court to the following citations: 
Deas vs. State, 161 So. 729 (Florida); Tully vs. State, 
68 So. 934 (Florida); Broivn vs. State, 17 So. 278 
(Mississippi); Baker vs. State, 33 So. 716 (Mississippi); 
Story vs. State, 59 So. 480 (Alabama); Green vs. State, 
96 So. 651 (Alabama); Weems et al. vs. State, 141 So. 
215 (Alabama); and State vs. Hodgeson et al., 58 So. 14 
(Louisiana). In the Brown casg, supra, the Court passed 
on the identical question of the introduction of testimony 
relative to the victim having a venereal disease, and the 
state court held that it was not admissible.



63

In the other portion of this assignment of error, in 
which the appellants allege that the Court erred in re­
fusing to admit the evidence of Dr. McGuffin, that at 
the time of his examination of the said witness, thirty 
hours after the alleged crime of rape, the prosecuting 
witness was very composed and complacent and related 
her account of the transaction without feeling or ex­
citement of any kind, this contention is absolutely base­
less. On page 354 of the record, after the jury returned 
to the courtroom, the trial proceeded and Dr. McGuffin 
was questioned by appellants’ counsel concerning his 
examination of the victim. Dr. McGuffin testified in 
answer to questions, and on the bottom of page 355 of 
the record he testified as follows: “ Her reactions were 
entirely normal. In other words, I did not see any signs 
of worry or anxiety.” Then again, on page 356 of the 
record, he continued his testimony relative to her de­
meanor at the time he examined her.

It is respectfully submitted that the points raised by 
the appellants under this assignment of error are totally 
without merit and should not be sustained.

Assignment of Error No. 8

Under this assignment of error the appellants allege 
that the Court erred in permitting the witness Captain 
Alvin P. Brauer to testify as to the official records of 
guard duty in Camp Claiborne and in admitting these 
records in the evidence. Captain Brauer’s testimony 
relative to the official records of Camp Claiborne is 
found in the record, pages 217 to 224, inclusive. His tes­
timony speaks for itself and clearly establishes the offi­
cial character of the records introduced by him. How-



64

ever, the Government, in order to clear the official char­
acter of the records beyond any reasonable doubt, placed 
Lieutenant Gerald R. Coker on the witness stand, and 
he testified that the records bore his signature and that 
he was familiar with all of the entries therein. (R. 241- 
248, inclusive )

It is respectfully submitted that this assignment of 
error is without merit and should not be sustained.

Assignments of Error Nos. 9, 10 and 11

We find no argument in appellants’ brief supporting 
their contentions raised under the above three assign­
ments of error, and for that reason we do not feel that 
we are compelled to answer same, as they have clearly 
been abandoned.

We respectfully submit that they are without merit 
and should not be sustained.

Assignments of Error Nos. 12 and 13

Appellants allege under Assignment of Error No. 12 
that the Court erred in refusing to grant defendants’ 
and appellants’ motion to find them not guilty at the 
close of the Government’s case, and under Assignment 
No. 13 that the Court erred in refusing to grant de­
fendants and appellants’ motion to find them not guilty 
at the close of all of the evidence.

These assignments of error are leveled at all of the 
Government’s testimony upon which the jury convicted 
the appellants as charged under the indictment. We



65

have already given the Court a complete statement of 
facts hereinabove, and we feel confident that after all 
of said facts, together with the exhibits introduced in 
this case, are understood, the guilt of appellants was 
proved beyond all reasonable doubt. Their identity was 
clearly established, not only from the official records of 
Camp Claiborne itself, but from various witnesses who 
came in contact with them, before, during and after the 
commission of their heinous crime.

Appellants in their desperation contended in their 
brief that the evidence introduced by the Government 
failed to establish their identity. When all of the facts 
of the case are taken together, and as a whole, there 
can be no shadow of a doubt that they are the guilty 
parties. Their argument in support of these assignments 
of error would probably be in order before a jury, but 
certainly not before an appellate court.

We respectfully submit that these assignments oi 
error are without merit and should not be sustained.

Assignment of Error No. 14

Under this assignment of error the ■ appellants allege 
that the Court erred in refusing to give to the jury the 
special charges requested by the defendants. However, 
we cannot find any argument in their brief to support 
their contention, and inasmuch as they have abandoned 
this assignment of error we do not feel compelled to 
answer it.

It is respectfully submitted that the assignment of 
error is without merit and should not be sustained.



66

Assignment of Error No. 16

The appellants allege in this assignment of error that 
the Court erred in his charge as to the confessions and 
statements admitted in evidence over the objections of 
the defendants and appellants, and in charging that, al­
though the statements were only admissible against the 
ones making the statement, the jury had the right to 
take into consideration the whole of each statement.

We have already discussed under Assignment of Error 
No. 6 the points raised by the appellants under this 
assignment of error, and respectfully refer the Court 
to our argument therein. It is to be noted that no spe­
cific objection was made by the appellants’ counsel to 
the Judge’s charge, and a reading of the record will 
show that appellants’ counsel were satisfied with the 
Judge’s charge to the jury.

We respectfully submit that this assignment of error 
is without merit and should not be sustained.

Assignment of Error No. 17

Under this assignment of error the appellants allege 
that the Court erred in including in his charge state­
ments that were prejudicial to the rights of the defend­
ants and appellants No objection was made by appel­
lants’ counsel to any statements of the Court in its 
charge to the jury, and we object to any new issues 
being raised, whatever they may be. In answer thereto, 
however, we submit that the Judge’s charge to the jury 
was correct in every detail, both as to factual matters 
as well as legal interpretations.



67

We respectfully submit that this assignment of error 
is without merit and should not be sustained.

Assignment of Error No. 18

Under this assignment of error the appellants allege 
that the Court erred in overruling the defendants’ and 
appellants’ motion for a new trial. This is a matter 
within the sound discretion of the trial court, and as 
there was nothing contained in the motion for a new 
trial which had not been already considered by the 
Court, no abuse of discretion was committed.

We respectfully submit that this assignment of error 
is without merit and should not be sustained.

CONCLUSION

The crime for which these appellants have been con­
victed and sentenced to death is unquestionably one of 
the most heinous and aggravated of all crimes known 
to man. It has been so recognized by the very fact that 
it carries the extreme penalty. A reading of the record 
will convince any fair-minded person that they were 
given a fair and impartial trial before a fair and im­
partial jury. There was not at any time any indication 
or suggestion of prejudice, even though the case was one 
which would necessarily attract publicity. The appellants 
have by their own statements, which were freely and vol­
untarily given by them to an agent of the Federal Bureau 
of Investigation, admitted their participation and guilt. 
That they are amenable to the punishment which they 
have received should not be questioned in any manner. 
If crimes such as this are to go unpunished, the break-



6 8

down of justice is inevitable. No cliche or group, who­
ever or whatever it may be, interested in the due ad­
ministration of justice should tolerate or sanction the 
attempt of those guilty of so despicable a crime to escape 
the just punishment provided by law. Technicalities, if 
any exist, should not afford a haven for those who are 
clearly guilty under the law. In this case the appellants 
have been tried and found guilty. They were sentenced 
after having their day in court. Every right due them 
under the Constitution and laws of this country was 
afforded them by the Court. The only inescapable con­
clusion is that they are answerable for their crime.

We therefore respectfully submit that the conviction 
and sentence of the District Court should be affirmed.

Respectfully submitted,

MALCOLM E. LAFARGUE,
United States Attorney.

JOHN A PATIN,
Assistant United States Attorney.



CERTIFICATE

Supreme Court of the United States

OCTOBER TERM, 1942

No. 889

RICHARD PHILIP ADAMS, JOHN W ALTER BORDE- 
NAVE AND LAWRENCE MITCHELL,

vs.

THE UNITED STATES OF AMERICA AND JOHN S. 
RYAN, WARDEN

ON CERTIFICATE FROM TH E  U N ITED STATES CIRCUIT COURT OF 
APPEARS FOR T H E  F IF T H  CIRCUIT

FILED APRIL 6, 1943.



'



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1942

No. 889

RICHARD PHILIP ADAMS, JOHN W ALTER BORDE- 
NAVE AND LAWRENCE MITCHELL,

vs.

THE UNITED STATES OF AMERICA AND JOHN S. 
RYAN, WARDEN

ON CERTIFICATE FROM TH E  U N ITED STATES CIRCUIT COURT OF 
APPEALS FOR T H E  F IF T H  CIRCUIT

INDEX.
Original

Certificate from United States Circuit Court of Appeals for
the Fifth C ircu it...............................................................

Statement of facts .................................................
Questions certified ........................................................
Judge’s signatures ........................................................
Clerk’s certificate .................... (omitted in printing)..

1
1
3
4
5

Print

1
1
3
4

J udd  & D e t w e il e e  ( I n c . ) ,  P b in t e r s , W a s h in g t o n , D . C., A p r il  13, 1943.



• .......... .......... ....... ■
.................................  ...........

................
. • - • • ■ ........................................... - '  ■ •



1

[fol. 1] [File endorsement omitted]

IN THE UNITED STATES CIRCUIT COURT OF 
APPEALS FOR THE FIFTH CIRCUIT

No. 10,410

R ic h a r d  P h i l ip  A d a m s , J o h n  W a l t e r  B o r d e n a v e , and 
L a w r e n c e  M i t c h e l l , Appellants,

versus

U n it e d  S ta t e s  or A m e r ic a , Appellee 

No. 10,568
R ic h a r d  P h i l ip  A d a m s , J o h n  W a l t e r  B o r d e n a v e , and 

L a w r e n c e  M it c h e l l , Applicants,

versus

J o h n  S. R y a n , Warden, Respondent 

And Exception by United States of America 

Application for Writ of Habeas Corpus 

Certificate—Filed March 29, 1943

The undersigned judges of said court, sitting for the de­
cision of the above stated cases in said court, desire the 
instruction of the Supreme Court of the United States for 
the proper decision of the causes upon the questions of law 
below stated, and do certify them to the Supreme Court 
pursuant to Section 239 of the Judicial Code and Rule 37 
of the Supreme Court.

S t a t e m e n t  of F a c ts

Case No. 10410 is an appeal from a conviction and a death 
sentence had in the District Court of the United States for 
the Western District of Lousiana on August 10, 1942, for 
the offense of rape, under Section 272 Third, and Section 278 
of the United States Criminal Code, as amended, 18 U. S. 
C. A. §451, 457. A question not raised on the trial, but 
raised on appeal, is whether the place of the commission of 
the offense was at the time within the jurisdiction of the



2

United States so as to make applicable the cited criminal 
[fol. 2] law. In aid of the appeal, and invoking as a prece­
dent Adams vs. United States, decided by the Supreme 
Court Dec. 21, 1942, the appellants applied to this court for 
a writ of habeas corpus against the warden having them in 
custody, alleging the custody to be based on a void commit­
ment for the single reason that the United States had no 
jurisdiction to punish the crime of rape at the place and 
time it was alleged to have been committed. This is case 
No. 10568. The order to show cause why the writ should 
not be issued was answered by the United States. The ques­
tion presented by the main appeal, as to jurisdiction, is the 
same as that presented by the application for the writ of 
habeas corpus. The two matters were argued together and 
are before us for decision.

The proven facts are that the lands occupied by Camp 
Claiborne, in Rapides Parish in the Western District of 
Louisiana, were in the summer of 1940 under contract to be 
sold by Branch E. Smith to the United States, and were to 
be used for a national forest under the supervision of the 
Secretary of Agriculture. The Secretary of Agriculture by 
letter to the Secretary of War agreed to their use for mili­
tary purposes. Title in fee simple was conveyed to the 
United States by Smith Dec. 19, 1940, and the act of sale 
was duly recorded the same day. On February 18, 1941, 
another act correcting the former one was made and re­
corded. Camp Claiborne, a military reservation, embracing 
several thousand acres, was thereafter established on the 
land, temporary buildings and tents were erected, and sol­
diers were stationed and being trained there, but no fort or 
arsenal or dockyard is shown to exist there. The three ap­
pellants, who were then and there soldiers in service at the 
camp, are charged with, and by the jury have been found 
guilty of, on the tenth day of May, 1942, within the limits of 
the camp, raping a civilian woman. At that time, and at the 
time of their trial, neither the Secretary of Agriculture nor 
the Secretary of War nor any other authorized person had 
in behalf of the United States filed with the Governor of 
Louisiana, or in any other manner prescribed by the law of 
Louisiana, a notice of acceptance of jurisdiction over the 
lands above mentioned, as provided in United States Code 
Title 40, Section 255, as amended by the Act of Oct. 9, 1940, 
54 Stats. 1083.



3

[fol. 3] That Act provides:
“ Notwithstanding any other provision of law, the obtain­

ing of exclusive jurisdiction in the United States over lands 
or interests therein which shall have been or shall hereafter 
be acquired by it shall not be required; but the head or other 
authorized officer of any department or independent estab­
lishment of the'Government may, in such cases and at such 
times as he may deem desirable, accept or secure from the 
State in which any lands or interests therein under his im­
mediate jurisdiction, custody, or control are situated, con­
sent to or cession of such jurisdiction, exclusive or partial, 
not theretofore obtained, over any such lands or interests 
as he may deem desirable and indicate acceptance of such 
jurisdiction on behalf of the United States by filing a 
notice of such acceptance with the Governor of such State 
or in such other manner as may be prescribed by the laws 
of the State where such lands are situated. Unless and un­
til the United States has accepted jurisdiction over lands 
hereafter to be acquired as aforesaid, it shall be conclu­
sively presumed that no such jurisdiction has been ac­
cepted.”

In 1940 there was a statute in force, Dart’s Louisiana 
Statutes § 2898, which provides:

“ The United States may enter upon and occupy any land 
which may have been, or may he purchased or condemned, 
or otherwise acquired, and shall have the right of exclusive 
jurisdiction over the property so acquired during the time 
that the United States shall be or remain the owner thereof 
for all purposes, except the administration of the criminal 
laws of said State, and the service of civil process of said 
State therein, and shall hold the same exempt from all State, 
parochial, municipal or other taxation.”

The questions of law upon which we desire to be in­
structed and which are necessary to be answered in order 
properly to decide the cause are these;

Q u e s t io n s  C e r t if ie d

1. Is the effect of the Act of Oct. 9, 1940, above quoted, 
to provide that, as to lands within a State thereafter ac­
quired by the United States, no jurisdiction exists in the 
United States to enforce the criminal laws embraced in 
United States Code Title 18, Chapter 11, and especially



4

Section 457 relating to rape, by virtue of Section 451, Third, 
as amended June 11, 1940, unless and until a consent to 
accept jurisdiction over such lands is filed in behalf of the 
United States as provided in said Act?

2. Had the District Court of the Western District of 
Louisiana jurisdiction, on the facts above set out, to try and 
sentence the appellants for the offense of rape committed 
within the bounds of Camp Claiborne on May 10, 1942?

[fol. 4] Let this certificate be authenticated by the Clerk 
of this Court and forwarded to the Supreme Court of the 
United States.

This March 29, 1943.
(Name illegible), United States Circuit Judge. J. C. 

Hutcheson, jr., United States Circuit Judge. Leon 
McCord, United States Circuit Judge.

[fol. 5] Clerk’s certificate omitted in printing.

(5604)











IN  TH E

Supreme Court of the United States
October Term, 1942

No. 889

RICHARD PHILIP ADAMS, JOHN WALTER 
BORDENAVE, and LAWRENCE MITCHELL

v.

THE UNITED STATES OF AMERICA and 
JOHN S. RYAN, Warden

ON CERTIFICATE FROM TH E UNITED STATES CIRCUIT 
COURT OF APPEALS FOR TH E  F IF T H  CIRCUIT

BRIEF FOR RICHARD PHILIP ADAMS, 
JOHN WALTER BORDENAVE, AND 

LAWRENCE MITCHELL.
*S*S a i c *

T hurg oo d  M a r s h a l l ,
New York, N. Y. 

W i l l ia m  H . H a s t ie , 
Washington, D. C .

W. R obert M in g , Jr., 
Chicago, 111.

Attorneys for Richard P. Adams, 
Lawrence Mitchell and John 
W. Bordenave.

J o se ph  T h o r n t o n , 
New Orleans, La. 

M il t o n  R . K o n v it z , 
Newark, N. J.,

Of Counsel.





IN  TH E

Supreme Court of the United States
October Term, 1942

No. 889

RICHARD PHILIP ADAMS, JOHN WALTER 
BORDENAVE, and LAWRENCE MITCHELL

v.

THE UNITED STATES OF AMERICA and 
JOHN S. RYAN, Warden

ON CERTIFICATE FROM TH E  UNITED STATES CIRCUIT 
COURT OF APPEALS FOR TH E  F IF T H  CIRCUIT

BRIEF FOR RICHARD PHILIP ADAMS, 
JOHN WALTER BORDENAVE, AND  

LAWRENCE MITCHELL.

Opinions Below.

The District Court of the United States for the West­
ern District of Louisiana rendered no opinion. The United 
States Circuit Court of Appeals for the Fifth Circuit has 
not rendered judgment.

Jurisdiction.

The certificate of the circuit court of appeals dated 
March 29, 1943, was filed in this Court on April 6, 1943. 
The jurisdiction of this Court is conferred by Section 239 
of the Judicial Code as amended by the Act of February 
13, 1925. See also Rule 37 of this Court.



2

Questions Presented.

The questions certified are the following:

1. Is the effect of the Act of October 9, 1940, [c. 793, 54 
Stat. 1083; R. S. 355, as amended (40 U. S. C. 255)] to pro­
vide that, as to lands within a State thereafter acquired by 
the United States, no jurisdiction exists in the United 
States to enforce the criminal laws embraced in United 
States Code, Title 18, Chapter 11, and especially Section 
457 relating to rape, by virtue of Section 451, Third, as 
amended June 11, 1940, unless and until a consent to ac­
cept jurisdiction over such lands is filed in behalf of the 
United States as provided in said Act?

2. Had the District Court of the Western District of 
Louisiana jurisdiction, on the facts above set out, to try and 
sentence the appellants for the offense of rape committed 
within the bounds of Camp Claiborne on May 10, 1942?

Statement.

The following statement of facts is contained in the 
certificate:

“ Case No. 10410 is an appeal from a conviction 
and a death sentence had in the District Court of 
the United States for the Western District of Louisi­
ana on August 10, 1942, for the offense of rape, under 
Section 272 Third, and Section 278 of the United 
States Criminal Code, as amended, 18 U. S. C. A. 
§§451, 457. A question not raised on the trial, but 
raised on appeal, is whether the place of the com­
mission of the offense was at the time within the 
jurisdiction of the United States so as to make ap­
plicable the cited criminal law. In aid of the appeal, 
and invoking as a precedent Adams v. United States 
[Ex rel. McCann, 317 U. S. 269], decided by the



3

Supreme Court December 21, 1942, the appellants 
applied to this Court for a writ of habeas corpus 
against the warden having them in custody, alleging 
the custody to be based on a void commitment for the 
single reason that the United States had no jurisdic­
tion to punish the crime of rape at the place and time 
it was alleged to have been committed. This is case 
No. 10568. The order to show cause why the writ 
should not be issued was answered by the United 
States. The question presented by the main appeal, 
as to jurisdiction, is the same as that presented by 
the application for the writ of habeas corpus. The 
two matters were argued together and are before us 
for decision.

“ The proven facts are that the lands occupied by 
Camp Claiborne, in Rapides Parish in the Western 
District of Louisiana, were in the summer of 1940 
under contract to be sold by Branch E. Smith to the 
United States, and were to be used for a national 
forest under the supervision of the Secretary of 
Agriculture. The Secretary of Agriculture by letter 
to the Secretary of War agreed to their use for mili­
tary purposes. Title in fee simple was conveyed to 
the United States by Smith December 19, 1940, and 
the act of sale was duly recorded the same day. On 
February 18, 1941, another act correcting the former 
one was made and recorded. Camp Claiborne, a mili­
tary reservation, embracing several thousand acres, 
was thereafter established on the .land, temporary 
buildings and tents were erected, and soldiers were 
stationed and being trained there, but no fort or 
arsenal or dockyard is shown to exist there. The 
three appellants, who were then and there soldiers in 
service at the camp, are charged with, and by the jury 
have been found guilty of, on the tenth day of May 
1942, within the limits of the camp, raping a civilian 
woman. At that time, and at the time of their trial, 
neither the Secretary of Agriculture nor the Secre­
tary of War nor any other authorized person had in 
behalf of the United States filed with the Governor



4

of Louisiana, or in any other manner prescribed by 
the law of Louisiana, a notice of acceptance of juris­
diction over the lands above mentioned, as provided 
in United States Code, Title 40, Section 255, as 
amended by the Act of October 9, 1940, 54 Stats. 
1083.”

Summary of Argument.
K. S. 355, as amended February 1,1940 (40 U. S. C., Sec­

tion 255) provides that the United Staes shall obtain 
“ exclusive or partial”  jurisdiction over lands only by filing 
an acceptance of such jurisdiction with the appropriate state 
authority. Since no acceptance was filed, the United States 
did not have jurisdiction over the land upon which the crime 
was alleged to have been committed.

ARGUMENT.
The District Court did not have jurisdiction to try 

and sentence the appellants for the offense of rape.

Appellants below were convicted of the crime of rape 
alleged to have been committed on May 10, 1942 within the 
bounds of Camp Claiborne, a military reservation in Louisi­
ana. Title in fee simple to the lands of the reservation had 
been conveyed to the United States on December 19, 1940, 
and the lands were to be used for a national forest under 
the supervision of the Secretary of Agriculture. The Sec­
retary of Agriculture agreed to permit their use for military 
purposes. It was not until January 2, 1943, that the Sec­
retary of War wrote to the Governor of Louisiana, accept­
ing jurisdiction over the lands in question (Appendix B, 
Brief for the United States).

The effect of R. S. 355, as amended February 1, 1940 
(Appendix A, Brief for the United States) is that no juris­



diction existed in the United States to enforce the criminal 
laws relating to rape, as against the appellants below, at 
the time and place it was alleged to have been committed, 
as there was no consent to accept jurisdiction over such 
lands filed in behalf of the United States as provided in said 
Act. The District Court of the Western District of Louisi­
ana had, therefore, no jurisdiction to try and sentence the 
appellants below for the offense alleged to have been com­
mitted within the bounds of Camp Claiborne on May 10, 
1942.

The Brief for the United States adequately presents the 
authorities relevant to the determination of the issues 
involved.

Conclusion.

It is respectfully submitted that an answer in the affirma­
tive be given to the first question certified, and an answer in 
the negative to the second question certified.

T hurgood  M a r s h a l l ,
New York, N. Y.

W i l l ia m  H . H a s t ie , 
Washington, D. C .

W. R obert M in g , J r ., 
Chicago, 111.

Attorneys for Richard P. Adams, 
Lawrence Mitchell and John 
W. Bordenave.

J o s e ph  T h o r n t o n ,
New Orleans, La.

M il t o n  R . K o n v it z ,
Newark, N. J.,

Of Counsel.

Dated May 6th, 1943.





L a w yer s  P ress, I n c ., 1 6 5  W i l l i a m  S t . ,  N .  Y .  C . ;  ’ P h o n e :  B E e k m a n  3 - 2 3 0 0







■



N o . 8 8 9

J ttth e J k p re m e  Qkurt o f  t t o i t n M  S ta te s
October T erm, 1942

R ichard P htlip A dams, John W alter B orden- 
ave, and L awrence M itchell 

v.
T he U nited States of A merica and John S. 

R yan , W arden

ON CERTIFICATE FROM THE UNITED STATES CIRCUIT 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES





I N D E X

Pago

Opinions below-----------------------------------------------------------------------------  1
Jurisdiction-----------------------------------------------------------------------------------
Questions presented---------------------------------------------------------------------  2
Constitutional and statutory provisions involved..........................  2
Statement-------------------------------------------------------------------------------------  3
Summary of discussion----------------------------------------------------------------  5
Discussion:

The United States had not accepted jurisdiction over the 
lands upon which the crime was committed and there­
fore the district court was without jurisdiction to try 
and sentence the defendants---------------------------------------------  6

A. The United States has not accepted partial or
concurrent legislative jurisdiction in the manner 
required by Section 355 of the Revised Statutes, 
as amended----------------------------------------------------------- 11

B. Congress has declined to accept concurrent juris­
diction over lands acquired for national forests. 22

Conclusion------------------------------------------------------------------------------------  27
Appendix A -----------------------------------------------------------------------------------
Appendix B ----------------------------------------------------------------------------------- 32
Appendix C----------------------------------------------------------------------------------- 34
Appendix D ------------------------------------------------------  4(5

CITATIONS
Cases:

Adams v. United States ex rel. McCann, 317 U. S. 269------  3
Atkinson v. Tax Comm’n, 303 U. S. 20--------------------------------  10, 16
Benson v. United States, 146 U. S. 325--------------------------------  22
Bowen v. Johnston, 306 U. S. 19------------------------------------------ 21, 26
Brown v. United States, 257 Fed. 46, reversed on other

grounds, 256 U. S. 335— ----------------------------'--------------------  17
Collins v. Yosemite Park Co., 304 U. S. 518--------------------------  10,17
Fort Leavenworth R. R- Co. v. Lowe, 114 U. S. 525-------------  6
Gill v. State, 141 Tenn. 379-------------------------- ---------------- -------  17
James v. Dravo Contracting Co., 302 U. S. 134---------10,14,15, 17
Jerome v. United States, No. 325, this Term, decided Feb­

ruary 1, 1943---------------------------------------------------------------------  24
Mason Co. v. Tax Comm’n, 302 U. S. 186---------------------  10, 16, 17
Pacific Coast Dairy v. Department of Agriculture, No. 275 this

Term, decided March 1, 1943-------------------------------------------  10
(i)

626406— 43------1



II

Cases— Continued. Page.
Pothier v. Rodman, 291 Fed. 311, reversed on other grounds,

264 U. S. 3 9 9 . . .___________________ _____________________ 17
State v. Bruce, 104 Mont. 500, affirmed by equally divided

court, 305 U. S. 577______________________________________  17
State v. Oliver, 162 Tenn. 100_______________________________ 17
Williams v. Arlington Hotel Co., 22 F. (2d) 669____________ 22
Yellowstone Park Transportation Co. v. Gallatin County, 27 

F. (2d) 410, reversed on other grounds, 31 F. (2d) 644,
certiorari denied, 280 U. S. 555__________________________  17

Constitution and Statutes:
Constitution of the United States, Article I, sec. 8, cl. 17__ 15, 28 
Criminal Code:

Section 272, as amended (18 U. S. C. 451)___  6, 9, 20, 22, 28
Section 278 (18 U. S. C. 457)____________ _____________ 6, 29

Act of June 29, 1936, c. 860, sec. 1, 49 Stat. 2026 (40 U. S.
C. 421)__________________________________________________  24

Act of October 9, 1940 (c. 785, sec. 1, 54 Stat. 1058 (18
U. S. C. 576)_____________________________________________  25

Bankhead Act (Act of June 29, 1936, c. 868, sec. 1, 49 Stat.
2035 (40 U. S. C. 431))__________________________________ 24

Joint Resolution of September 11, 1841, as amended (5
Stat. 468)_________________________________________________ 13

Louisiana Act No. 12, sec. 2, 1892 (Dart’s Statutes of
Louisiana, 2898) - _______________________________________ 8, 9, 30

Louisiana Act No. 31 of 1942 (Dart’s Statutes of Louisiana
2898 (Supp.))_____________________________________________  8

Louisiana Act No. 90 of 1922, as amended by Act No. 71 of
1924 (Dart’s Statutes of Louisiana, 3329)___ 7, 9, 12, 22, 30, 3

Rev. Stat. 355, as amended by Act of February 1, 1940,
54 Stat. 19 (40 U. S. C. 255)________________  5, 8, 10, 11, 13, 29

Weeks Forestry Act, Section 12 (16 U. S. C. 480) _ 5, 7, 10, 23, 30 
Miscellaneous:

Annual Report of the Attorney General, 1940, p. 126____  17
84 Cong. Rec. 10826-10827_________________ _______ _______ 19
86 Cong. Rec. 474__________________________________ 1______ 19
Hearings, House Committee on Public Buildings and

Grounds, H. R. 7293, 76th Cong., 1st sess---------------------  16, 18
H. Rep. 1329, 76th Congress, 1st Sess_____________________  19
H. Rep. No. 1623, 76th Cong., 3d sess_____________________  19
8 Op. A. G. 102_________________________ ___________________ 14
8 Op. A. G. 418_____________________________________________  9
10 Op. A. G. 34________________________    14
15 Op. A. G. 212___________________________________________ 14
20 Op. A. G. 611___________________________________ 9
24 Op. A. G. 617____________________________________________  9, 14
31 Op. A. G. 260____________________________________________  9, 14
81 Op. A. G. 261_____ _________ _______________ _________ 14



Ill

Miscellaneous— Continued. Page.
31 Op. A. G. 2 6 3 . . . . ........................................................................ 14
31 Op. A. G. 2 6 5 - ..........- ....................................... - ...................... 9,14
31 Op. A. G. 282.................................................... - .......................  9, 14
31 Op. A. G. 294....................... - ....................................................  9,14
38 Op. A. G. 341________________________ ________________ -  14, 15
39 Op. A. G. 285______ ______- ....................................................... 15
Opinion of the Judge Advocate General 680.2, dated

October 17, 1941_______ _______- ...........- ................. ...............20,46
Opinion No. 2979 of Solicitor, Department of Agriculture,

dated December 18, 1940-------------------------------------------------  21, 38
Opinion No. 4311 of Solicitor, Department of Agriculture,

dated July 18, 1942-------------------------------------------------  8, 21, 24, 34





Jntht^fopmut O|ourto|the®nite(l pistes
October T erm, 1942

No. 889

R ichard P hilip A dams, John W alter B orden- 
ave, and L awrence M itchell 

v.
T he U nited States of A merica and John S. 

R yan, W arden

ON CERTIFICATE FROM THE UNITED STATES CIRCUIT 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

O P IN IO N S  B E L O W

The District Court o f the United States for the 
W estern District o f Louisiana rendered no opin­
ion. The United States Circuit Court o f A p ­
peals for  the F ifth  Circuit has not rendered judg­
ment.

j u r i s d i c t i o n

The certificate o f the circuit court o f appeals 
dated March 29, 1943, was filed in this Court on

( i )



2

A pril 6, 1943. The jurisdiction o f this Court is 
conferred by Section 239 o f the Judicial Code as 
amended by the A ct o f February 13, 1925. See 
also Rule 37 o f this Court.

Q U E ST IO N S P R E S E N T E D

The questions certified are the follow ing:
1. Is the effect o f the Act o f October 9, 1940, 

quoted infra p. 11 [c. 793, 54 Stat. 1083; R. S. 
355, as amended (40 U. S. C. 255)] to provide 
that, as to lands within a State thereafter 
acquired by the United States, no jurisdiction 
exists in the United States to enforce the criminal 
laws embraced in United States Code, Title 18, 
Chapter 11, and especially Section 457 relating 
to rape, by virtue o f Section 451, Third, as 
amended June 11, 1940, unless and until a consent 
to accept jurisdiction over such lands is filed in 
behalf o f the United States as provided in said 
A ct?

2. H ad the District Court o f the W estern 
District o f Louisiana jurisdiction, on the facts 
above set out, to try and sentence the appellants 
for  the offense o f rape committed within the 
bounds o f Camp Claiborne on M ay 10, 1942 ?

C O N S T IT U T IO N A L  A N D  S T A T U T O R Y  P R O V IS IO N S  
IN V O L V E D

The constitutional and statutory provisions in­
volved are set forth in Appendix A, infra, pp. 
28-31.



3
S T A T E M E N T

The following statement o f facts is contained 
in the certificate:

“ Case No. 104101 is an appeal from  a conviction 
and a death sentence had in the District Court o f 
the United States for the W estern District o f 
Louisiana on August 10, 1942, for  the offense o f 
rape, under Section 272 Third, and Section 278 
o f the United States Criminal Code, as amended, 
18 U. S. C. A. § 451, 457. A  question not raised 
on the trial, but raised on appeal, is whether the 
place o f the commission o f the offense was at the 
time within the jurisdiction o f the United States 
so as to make applicable the cited criminal law. 
In  aid o f the appeal, and invoking as a precedent 
Adams v. United States [ex. rel. McCann, 317 
U. S. 269], decided by the Supreme Court Dec. 
21, 1942, the appellants applied to this Court 
for  a writ o f habeas corpus against the warden 
having them in custody, alleging the custody to be 
based on a void commitment for  the single reason 
that the United States had no jurisdiction to 
punish the crime o f rape at the place and time it 
was alleged to have been committed. This is 
case No. 10568.2 The order to show cause why

1 Entitled in the Circuit Court of Appeals “Richard Philip 
Adams, John Walter Bordenave, and Lawrence Mitchell, 
Appellants, versus United States of America, Appellee.”

2 Entitled in the Circuit Court of Appeals “Richard Philip 
Adams, John Walter Bordenave, and Lawrence Mitchell, 
Applicants, versus John S. Ryan, Warden, Respondent.”



4

the writ should not be issued was answered by 
the United States. The question presented by the 
main appeal, as to jurisdiction, is the same as that 
presented by the application for  the writ o f 
habeas corpus. The two matters were argued 
together and are before us for decision.

“ The proven facts are that the lands occupied 
by Camp Claiborne, in Rapides Parish in the 
W estern District o f Louisiana, were in the sum­
mer o f 1940 under contract to be sold by Branch 
E. Smith to the United States, and were to be 
used fo r  a national forest under the supervision 
o f  the Secretary o f Agriculture. The Secretary 
o f Agriculture by letter to the Secretary o f W ar 
agreed to their use fo r  m ilitary purposes. Title 
in fee simple was conveyed to the United States 
by Smith Dec. 19, 1940, and the act o f sale 
was duly recorded the same day. On February 
18, 1941, another act correcting the form er one 
was made and recorded. Camp Claiborne, a mili­
tary reservation, embracing several thousand 
acres, was thereafter established on the land, tem­
porary buildings and tents were erected, and sol­
diers were stationed and being trained there, but 
no fort or arsenal or dockyard is shown to exist 
there. The three appellants, who were then and 
there soldiers in service at the camp, are charged 
with, and by the jury  have been found guilty of, 
on the tenth day o f  May, 1942, within the limits 
o f  the camp, raping a civilian woman. At that 
tim e,'and at the time o f their trial, neither the



5

Secretary o f Agriculture nor the Secretary of 
W ar nor any other authorized person had in be­
half o f the United States filed with the Governor 
of Louisiana, or in any other manner prescribed 
by the law o f Louisiana, a notice o f acceptance 
o f jurisdiction over the lands above mentioned, 
as provided in United States Code Title 40, Sec­
tion 255, as amended by the A ct o f Oct. 9, 1940, 
54 Stats. 1083.”

S U M M A R Y  OF D ISC U SSIO N

A. R. S. 355, as amended February 1, 1940 
(40 U. S. C., Section 255), provides that the 
United States shall obtain “ exclusive or partial”  
jurisdiction over lands only by filing an accept­
ance o f such jurisdiction with the appropriate 
state authority. The legislative history o f the 
A ct shows that the term “ partial”  was designed 
to reach all jurisdiction less than exclusive; it 
would thus apply to the present situation, even if 
we assume that the state had offered the United 
States “ concurrent jurisdiction.”  This has been 
the administrative construction o f the Act. Since 
no acceptance was filed, the United States did not 
have jurisdiction over the land upon which the 
crime was committed.

B. The land involved in this case was acquired 
fo r  forestry purposes. Section 12 o f the W eeks 
Forestry A ct o f 1911 (16 U. S. C., Section 480) 
provides that civil and criminal jurisdiction “ over 
persons within national forests shall not be af-

525406— 43-------2



6

fected or changed by reason o f their existence.”  
The jurisdiction over such persons would be both 
affected and changed if  they were subjected both 
to state laws and to the federal laws applicable 
to federal lands instead o f to the form er alone. 
The Department o f Agriculture, which supervises 
the national forests, has so construed the Act. 
Accordingly, it would appear that Congress has 
refused to authorize the acceptance o f concur­
rent jurisdiction over forest lands.

D ISC U SS IO N

t h e  u n i t e d  s t a t e s  h a d  n o t  a c c e p t e d  j u r i s d i c t i o n

OVER THE LANDS UPON W H IC H  THE CRIME W AS  

COMMITTED AND THEREFORE t h e  DISTRICT COURT 

W A S W ITH O U T JURISDICTION TO TRY AND SENTENCE  

TH E DEFENDANTS

Under Sections 272 and 278 o f the Criminal 
Code (18 U. S. C. Sections 451 and 457) rape is a 
federal offense, punishable by death, when com­
mitted on lands in a state owned by the United 
States and over which it has “ exclusive or con­
current jurisdiction.”  3

3 Section 272 also applies to crimes committed at “any 
place purchased or otherwise acquired by the United States 
by consent of the legislature of the State in which the same 
shall be, for the erection of a fort, magazine, arsenal, dock­
yard, or other needful building.” This clause is inapplicable, 
since the lands in the present case were purchased through 
the Secretary of Agriculture for national forest purposes. 
Furthermore, the “consent” required to bring this provision 
of the statute into operation has been held to be consent 
to exclusive federal jurisdiction (Fort Leavenworth R. R. 
Co. v. Lowe, 114, U . S. 525); here consent was qualified by



7

It has never been contended that the United 
States had exclusive jurisdiction over the lands 
here involved at the time the offense was com­
mitted. As stated in the certificate, the lands 
were acquired in 1940 by the United States for 
use as a national forest.4 The statute o f Louisi­
ana consenting to the purchase o f lands by the 
United States fo r  national forests provides for  the 
retention by the state o f “ concurrent jurisdiction”  
over crime,5 and the Weeks Forestry A c t 0 pro-

the reservation of criminal jurisdiction in the state (see 
notes 5, 8, infra).

4 W e are advised by the Department of Agriculture that 
the lands are a part of the Kisatchie National Forest which 
was established by presidential proclamation on August 30, 
1933, amended on June 13, 1936, to embrace the lands now 
included in Fort Claiborne.

5 Louisiana Act No. 90 of 1922, as amended by Act No. 71 
of 1924 (Dart’s Statutes of Louisiana, 3329), consenting to 
the purchase by the United States of lands for national for­
ests in that state provided “that the state shall retain a con­
current jurisdiction” so that “such criminal process as may 
issue under the authority of the state against the person 
charged with a commission of any crime without or within 
the said jurisdiction may be executed thereon in like manner 
as before the passage of this Act.” [Italics added.]

“ Section 12 of the Weeks Forestry Act of March 1, 1911, 
36 Stat. 963, 16 U. S. C. 480, provides: “The jurisdiction, 
both civil and criminal, over persons within national forests 
shall not be affected or changed by reason of their existence, 
except so far as the punishment of offenses against the 
United States therein is concerned; the intent and meaning 
of this provision being that the State wherein any such na­
tional forest is situated shall not, by reason of the establish­
ment thereof, lose its jurisdiction, nor the inhabitants 
thereof their rights and privileges as citizens, or be absolved 
from their duties as citizens of the State.” The Department



vides that the state shall not “ lose its jurisdic­
tion”  over criminal and civil matters in the na­
tional forests. The result would be the same if  
the lands had been acquired fo r  the military pur­
pose fo r  which they are now being used. The 
general consent statute o f Louisiana in force at 
the time, which was applicable to land purchased 
for other than forest purposes, excepted from  its 
cession o f exclusive jurisdiction “ the adminis­
tration o f the criminal laws o f said State”  
(Louisiana Act, No. 12, sec. 2 (1892), D art’s 
Statutes o f Louisiana, § 2898). And even if  there 
had been an unqualified consent or cession, the 
Act o f February 1, 1940, 54 Stat. 19, amending 
R. S. 355 (40 IT. S. C. 255), expressly provides 
that before exclusive jurisdiction shall vest in the 
United States, an acceptance thereof must be filed 
with the Governor, and, as the certificate states, no 
such certificate was filed prior to the commission 
o f the offenses in the present case.7
of Agriculture has uniformly taken the position that in 
view of the requirements of this statute the United States 
does not have exclusive jurisdiction over national forests. 
See Opinion No. 4311 of Solicitor, Department of Agricul­
ture, dated July 18,1942, discussed infra, p. 25.

7 In 1942, the Louisiana Legislature, by Act No. 31 (Dart’s 
Statutes of Louisiana 2898 (Supp.)) , amended the 1892 con­
sent statute so as to cede exclusive jurisdiction, without any 
vitiating reservation, over any and all lands acquired by the 
United States. On January 2,1943, Secretary of W ar Stim- 
son sent to the Governor of Louisiana an acceptance of ex­
clusive jurisdiction over the lands comprising Camp Clai­
borne, effective January 15, 1943. Receipt of the Secretary’s 
notification of acceptance was acknowledged by Governor 
Jones on January 7, 1943. A  copy of the Secretary’s letter 
is set forth in Appendix B, infra, p. 32.

8



9

The question is, therefore, whether the United 
States had acquired concurrent jurisdiction with 
Louisiana in the administration o f the criminal 
law over the land at the time in question. Plainly, 
Louisiana had proffered such jurisdiction by the 
act o f 1922, supra, note 5, consenting to the pur­
chase o f lands for  national forests, although this 
is not at all clear if  the lands are not to be treated 
as forests and are governed by the general consent 
Act o f 1892.8 But this Court has declared that

8 Section 2 of Louisiana Act No. 12 of 1892 (Dart’s Stat­
utes of Louisiana, § 2898) consented to the acquisition of 
lands within the state by the United States and ceded ex­
clusive jurisdiction for all purposes “except the administra­
tion of criminal laws of said State.” The exception clause 
may well be construed not only as reserving to Louisiana 
the right to enforce its criminal laws on ceded lands but as 
not vesting the United States with general criminal jurisdic­
tion at all. Indeed, in 1892, the predecessor to Criminal 
Code Section 272 (K. S. 5339) applied only to lands subject 
to exclusive federal jurisdiction, so that the reservation of 
state jurisdiction over crimes would, in itself, have pre­
cluded the United States from exercising any criminal juris­
diction. Thus, at that time, the Louisiana Legislature 
might have understood that it was retaining exclusive juris­
diction over criminal matters. Attorney General Knox, how­
ever, was of a contrary view; he ruled, with respect to the 
1892 Louisiana Act, that the United States obtained exclu­
sive jurisdiction, on the ground that if a state grants con­
sent to federal jurisdiction, qualifications upon that consent 
are void. 24 Op. A . G. 617 (1903). This opinion seems in­
consistent with earlier and later opinions with respect to 
substantially identical statutory provisions (8 Op. A . G. 
418 (1857); 20 id. 611 (1893); 31 id. 260, 265, 282, 294 
(1918)), and Attorney General Gregory expressly refused 
to follow it (31 id. 260). Cf. James v. Dravo Contracting 
Co., 302 U. S. 134.



10

when a state grants exclusive jurisdiction to the 
federal government, “ the grant may be accepted 
or declined, ’ ’ 9 and we assume that the same rule 
obtains when a state grants concurrent juris­
diction.

W e think that there was no acceptance o f  con­
current jurisdiction as to the lands involved in 
this case both (1 ) because no notification o f ac­
ceptance o f such jurisdiction had been filed in the 
manner required by R. S. 355, as amended Feb­
ruary 1, 1940, and (2 ) because the W eeks F or­
estry A ct o f March 1,1911,36 Stat. 963,16 U. S.C . 
Sec. 480, provides that the jurisdiction o f the 
states “ both civil and criminal * * * shall

9 Mason Co. v. Tax Common, 302 U . S. 186, 207; Atkinson 
v. Tax Comm’n, 303 U. S. 20, 23; Collins v. Yosemite Park 
Co., 304 U. S. 518, 528. Inasmuch as the rule that there must 
be an acceptance of exclusive jurisdiction rests upon “ famil­
iar principles applicable to grants” (Mason Co. v. Tax 
Common, 302 U. S. 186, 207), the same rule is equally appli­
cable to a transfer of less than exclusive jurisdiction, for 
there is no exception to those familiar principles which dis­
penses with the necessity of acceptance where the grant is 
for less than full fee title. Inasmuch as acceptance of ex­
clusive jurisdiction is required because “a transfer of legis­
lative jurisdiction carries with it not only benefits but obli­
gations” (James v. Draco Contracting Co., 302 U. S. 134, 
148), the same considerations of policy are applicable 
whether the transfer is of exclusive or concurrent jurisdic­
tion. Moreover, to hold that there must be an acceptance in 
the one case and not in the other would indeed generate 
“uncertainty and confusion” and multiply the “manifold 
legal phases of the diverse situations arising out of the exist­
ence of federally-owned lands within a state” referred to in 
the dissenting opinion in Pacific Coast Dairy v. Department 
of Agriculture, No. 275, this Term, decided March 1, 1943.



11

not be affected or changed”  by the acquisition o f 
lands for  forest purposes.

A. The United States has not accepted partial 
or concurrent legislative jurisdiction in the 
manner required by Section 355 of the Revised 
Statutes, as amended

R. S. 355, as amended February 1, 194010 (54 
Stat. 19, 40 U. S. C. Sec. 255) provides:

Notwithstanding any other provision o f 
law, the obtaining o f exclusive jurisdiction 
in the United States over lands or interests 
therein which have been or shall hereafter 
be acquired by it shall not be required; but 
the head or other authorized officer o f any 
department or independent establishment 
or agency o f the Government may, in such 
cases and at such times as he may deem 
desirable, accept or secure from  the State 
in which any lands or interests therein 
under his immediate jurisdiction, custody, 
or control are situated, consent to or cession 
o f such jurisdiction, exclusive or partial, 
not theretofore obtained, over any such 
lands or interests as he may deem desirable 
and indicate acceptance o f such jurisdic­
tion on behalf o f the United States by filing 
a notice o f such acceptance with the Gover­
nor o f such State or in such other manner 
as may be prescribed by the laws o f the 
State where such lands are situated. Unless 
and until the United States has accepted

10 It. S. 355 was again amended on October 9, 1940, so as 
to add new paragraphs, but the paragraph pertinent here 
was retained without change (54 Stat. 1083.)



1 2

jurisdiction over lands hereafter to he 
acquired as aforesaid, it shall he conclu­
sively presumed that no such jurisdiction 
has heen accepted. [Italics added.]

This Act prescribes the means whereby the 
United States shall accept “ exclusive or partial”  
jurisdiction over all lands acquired for  the United 
States, whether for  forestry or fo r  other pur­
poses. It establishes a conclusive presumption 
that jurisdiction has not been accepted unless a 
notice o f acceptance has been filed with the Gover­
nor o f the State or in a manner prescribed by 
state law. It  is not disputed that no such notice 
was filed as to the lands involved in this case. 
I f  R. S. 355 applies to such lands it would seem 
clear that the United States never acquired juris­
diction over them.

The contention advanced by the United States 
Attorney in the court below was that the Louis­
iana Act o f 1892 and the A ct o f 1922, supra, p. 7, 
n. 5, vested in the United States “ concurrent juris­
diction”  over forest lands, and that R. S. 355 ap­
plies only where the state is ceding “ exclusive or 
partial”  jurisdiction but not when the session is of 
“ concurrent”  jurisdiction. “ Concurrent”  juris­
diction is obviously not covered by the reference to 
“ exclusive”  jurisdiction in the federal act. And 
it was argued, on the basis o f definitions in legal 
and other dictionaries, that the word “ partial”  
could not be deemed to include “ concurrent.”  It  
was said that when the Federal Government has



13

“ partial”  jurisdiction, its jurisdiction covers only 
parts o f the whole and is incomplete; when juris­
diction is “ concurrent,”  on the other hand, the 
federal government has complete jurisdiction 
which is not diminished by the fact that the states 
also have jurisdiction over the same lands.

It  is, o f course, possible to construe the words 
“ partial”  and “ concurrent”  in the manner indi­
cated. But in this statute “ partial”  is used in 
contrast to “ exclusive,”  and in this setting we 
think that “ partial”  was intended to mean any 
jurisdiction less than exclusive. This interpre­
tation, which would make “ partial”  sufficiently 
broad to include cases o f concurrent jurisdiction, 
we believe is required by the legislative history 
o f the Act and the objects it was designed to 
achieve.

P rior  to its amendment in February 1940, Sec­
tion 355 o f the Revised Statutes provided that 
“ No public money shall be expended upon any 
site or land purchased by the United States for  
the purposes o f erecting thereon”  any “ building 
o f any kind whatever * * * until the con­
sent o f the legislature o f  the State .in which the 
land or site may be, to such purchase, has been 
given”  (Joint Resolution o f September 11, 1841 
(5 Stat. 468), as amended by A ct o f June 28, 1930 
(46 Stat. 828) ). This statute had been uniform ly 
construed as requiring an unqualified consent by 
the state legislature to the exercise o f exclusive

525406— 43------3



14

jurisdiction by the United States 11 upon the theory 
that the “ consent”  required by the statute is that 
“ contemplated and spoken o f in Article I, sec. 8, cl. 
17, o f the Constitution (24 Op. A. G. 617, 619 
(1 9 0 3 )): that it must be free from  qualifications, 
conditions, or reservations inconsistent with the 
exercise by the Congress o f ‘ exclusive legislation’ 
over the area acquired.”  31 Op. A. G. 261, 262 
(1918). As sometimes stated, the transfer o f 
jurisdiction contemplated by the statute was that 
exclusive jurisdiction “ which according to the let­
ter and intent o f the Constitution (Article I, sec. 
8, cl. 17) are in such cases to be vested in the United 
States.”  8 Op. A. G. 102 (1856) ; 10 Op. A. G. 34 
(1861) ; 15 Op. A. G. 212 (1877); 24 Op. A. G. 
617 (1903); 31 Op. A. G. 260, 263, 265, 282, 294 
(1918); 38 Op. A. G. 341 (1935). Cf. Fort Leaven­
worth R. Company v. Lowe, 114 U. S. 525, 532- 
534.

Following the decision o f this Court in James 
v. Bravo Contracting Co., 302 U. S. 134, which set 
at rest all constitutional doubts as to the power 
o f the states to give a conditional or qualified con­
sent, the Attorney General was asked to reconsider 
these previous interpretations o f section 355. The 
Attorney General, however, adhered to the pre­
vious view, holding that “ The probable truth is 
that the Congress, when choosing its language in

11 See 10 Op. A . G. 34, 39 (1861) ; 24 Op. A . G. 617, 619 
(1903) ; 31 Op. A . G. 260, 261 (1918); 31 Op. A . G. 282, 283 
(1918); 31 Op. A . G. 294, 295 (1918) ; 38 Op. A . G. 341, 345 
(1935).



15

1841, thought that consent would carry with it ex­
clusive jurisdiction and that the interpretation 
thereafter placed upon the statute correctly re­
flected the legislative contemplation.”  39 Op. A. 
G. 285, 288 (1939).

This interpretation o f the statute, coupled with 
the decision o f this Court in James v. Bravo Con­
tracting Co., 302 U. S. 134, 143, to the effect that 
“ other needful Buildings”  as used in Article I, 
sec. 8, cl. 17, embraced “ whatever structures are 
found to be necessary in the performance o f the 
functions o f the Federal Government”  greatly 
expanded the concept o f “ building,”  as used in 
old R. S. 355, to include dams, bridges, roads, and 
other structures. Accordingly, it became neces­
sary to secure exclusive jurisdiction in virtually 
every case o f the acquisition o f land, as struc­
tures o f some sort are required in connection with 
nearly every project for  which land is acquired 
by the United States. This presented serious ad­
ministrative difficulties, and it immediately be­
came apparent that the United States would be 
required to acquire exclusive jurisdiction over 
areas where this was not desirable. ■

The Department o f Justice thereupon undertook 
a reexamination o f the entire problem. A  memo­
randum was sent to the heads o f each o f the 
departments and agencies o f the Government 
which acquire lands in the administration o f their 
affairs, requesting their collaboration. Each o f 
these departments and agencies thereupon made



16

an elaborate survey o f the land under its im­
mediate control and o f the necessity and desira­
bility o f the United States exercising legislative 
jurisdiction over them. From  these surveys it 
became apparent that “ The needs o f the various 
departments d iffer.”  Hearings, House Committee 
on Public Buildings and Grounds, H . R. 7293, 76th 
Cong., 1st sess., p. 5. In  some instances the ac­
quiring agencies were o f the view that exclusive 
jurisdiction was both necessary and desirable to 
their effective administration. Others believed 
that concurrent or partial jurisdiction would be 
preferable for  their particular purposes, while 
still others were emphatic in disclaiming need for  
any jurisdiction whatever.12

Similarly, the decisions o f this Court holding 
that “ Acceptance may be presumed in the absence 
o f evidence o f a contrary intent”  (Mason Co. v. 
Tax Comm’n, 302 U. S. 186, 207; Atkinson v. Tax 
Comm’n, 303 U. S. 20, 23) presented the difficult 
problem o f proving acceptance or rejection in civil 
and criminal litigation, i. e., what acts o f admin­
istrative officials in a given case would be sufficient 
and the precise time such acceptance or rejection 
could be said to have occurred.

Hence, it was agreed by all o f the interested 
agencies that Section 355 o f the Revised Statutes 
should be revised to meet the present day require-

12 This appears from the files accumulated in the Depart­
ment during the course of its study of the problem.



17

ments o f the National Government. Annual Re­
port o f the Attorney General, 1940, p. 126. This 
Court, by its decision in James v. Bravo Contract­
ing Co., 302 U. S. 134, and the cases following it, 
had shown that no constitutional barriers stood in 
the way o f any such legislation, and had pointed 
out that the problem was one o f “ practical ad­
justment.”  Mason Co. v. Tax Comm’n, 302 U. S. 
186, 208; Collins v. Yosemite Park Co., 304 U. S. 
518, 528. In  view o f the varying needs o f the 
various acquiring agencies, there was complete 
unanimity that any corrective legislation should 
leave to the head o f the department or agency in 
each instance to determine the most suitable type 
o f jurisdiction needed for the particular project, 
and that all confusion should be eliminated by 
requiring an unequivocal act o f acceptance, such 
as the filing o f a notification with the Governor 
o f the state, which had already been required by 
some state statutes,13 or by compliance with any 
equivalent procedure which the states might pro­
vide, such as the recordation o f maps or plats.11

13 See, e. g., Yellowstone Park Transportation Co. v. Gal­
latin County, 27 F. (2d) 410, 411 (D. Mont.), reversed on 
other grounds, 31 F. (2d) G44 (C. C. A . 9 ) ,certiorari denied, 
280 U. S. 555; State v. Oliver, 162 Tenn. 100 (1931); cf. 
Brown v. United States, 257 Fed. 46, 50-51 (C. C. A . 5), re­
versed on other grounds, 256 U . S. 335.

14 See, e. g., Pothier v. Rodman, 291 Fed. 311, 320 (C. C. A. 
1), reversed on other grounds, 264 U. S. 399; Gill v. State, 
141 Tenn. 379 (1919) ; State v. Bruce, 104 Mont. 500 (1937), 
affirmed by equally divided court, 305 U. S. 577.



18

Accordingly, a bill which subsequently was 
adopted as the Act o f February 1, 1940 (c. 18, 54 
Stat. 19) was prepared in the Department o f 
Justice. As the legislative history shows, its en­
actment was precipitated by the fact that public 
building programs were being held up in several 
o f  the states which did not have general consent 
statutes or in which qualifications had been at­
tached which failed to meet the requirements o f 
existing law (see Hearings, House Committee on 
Public Buildings and Grounds, H. R. 7293, 76th 
Cong., 1st sess., pp. 2 -5 ). The purpose o f the 
amendment was explained to the Committee by 
the Department attorneys who drafted it, as 
follows id. p. 5 :

This bill would substitute for  that provi­
sion o f section '355 o f the Revised Statutes 
requiring the consent o f the State, a provi­
sion making it flexible, in that the head o f the 
acquiring agency or department o f the Gov­
ernment could at any time designate what 
type o f jurisdiction is necessary; that is, 
either exclusive or partial. In  other words 
it definitely contemplates leaving the ques­
tion o f extent o f jurisdiction necessary to 
the head o f the land-acquiring agency. 
[Italics added.]

The committee was further advised that “ The 
essential change that this bill would make in the 
statute is to allow the acquiring agency, or the 
government agency in charge o f the particular 
land or project to get from  the State the jurisdic-



19

tion needed to carry out the project”  [italics 
added], “ to get what they want, or to try to get it, 
instead o f being tied down by a strict require­
ment that they must have exclusive jurisdiction”  
{id., pp. 5 -7 ). It was pointed out that “ this bill 
provides for  a definite method o f acceptance”  and 
that “ In this way, everybody wall know whether 
there is or is not an acceptance o f the jurisdic­
tion”  (id., p. 7). Finally, the committee was told 
(id.) :

There is one other thing I would like to call 
attention to, and that is that under this 
proposed statute an agency can obtain par­
tial jurisdiction. They may obtain no jur­
isdiction at all, or partial jurisdiction, or 
exclusive jurisdiction. [Italics supplied.]

The bill was passed on the basis o f this explana­
tion without further significant comment in the 
committee reports or legislative debates. See H . 
Rep. No. 1329, 76th Cong., 1st Sess.; 84 Cong. Rec. 
10826-10827, 86 id. 474.

Viewed in the light o f its genesis and legisla­
tive history, it seems clear that the requirement 
that notification o f acceptance o f “ partial”  juris­
diction be filed in each instance w-as designed to 
be applicable to any type o f jurisdiction less than 
exclusive, including “ concurrent”  jurisdiction.15

15 Cf. H. Rep. No. 1623, 76th Cong., 3d sess., in which the 
Committee on the Judiciary, in favorably reporting the bill 
to extend Section 272 of the Criminal Code to places over 
which the United States had “concurrent” jurisdiction (Act



2 0

Only i f  this were so would the A ct establish a 
simple and effective system by which all could 
know whether and to what extent the Federal 
Government was exercising jurisdiction over par­
ticular lands.

The Act has been interpreted to reach cases o f 
concurrent jurisdiction by the agencies o f the 
Government which have authority over the land 
in question in this case. In  an opinion to the 
Assistant Chief o f Staff, G -4, the Judge A dvo­
cate General o f the Arm y advised: 16

It  may be observed that section 355 of 
the Revised Statutes, as amended, supra, 
provides for  the acceptance by the Secre­
tary o f W ar o f two types o f jurisdiction, 
namely, exclusive and partial. As indi­
cated above, there is also a type o f jurisdic­
tion commonly referred to as “ concur­
rent.”  It  is believed that the term con­
current jurisdiction is embraced within 
the term partial jurisdiction, for  the rea­
son that in cases where a state has ceded 
concurrent jurisdiction the authority o f 
the United States is not exclusive o f state 
authority.

of June 11, 1940, c. 323, 54 Stat. 304), apparently believed 
that “partial” and “concurrent” were synonymous; if it were 
otherwise Congress could be said to have deliberately left an 
hiatus in criminal jurisdiction over federal enclaves, i. e., 
areas over which “partial” but not “exclusive” or “concur­
rent” jurisdiction had been accepted.

16 The full text of the opinion (J. A . Gr. 680.2, dated Oc­
tober IT, 1941, is set forth as Appendix D, infra, p. 46.



21

The same position was taken by the Solicitor 
o f the Department o f  Agriculture in his opinion 
o f July 18, 1942,”  supra:

* * * the acquisition o f concurrent ju ­
risdiction over lands acquired by the 
United States after February 1, 1940, is 
governed by Section 355 o f the Revised 
Statutes, as amended * * *.

In  Bowen v. Johnston, 306 U. S. 19, 29-30, this 
Court gave great weight to the administrative 
interpretation o f a statute in similar circum­
stances, saying:

The administration o f the Park was placed 
with the W ar Department and it appears 
from  its files that on July 14, 1930, upon 
a review o f the pertinent legislation, the 
Judge Advocate General gave an opinion 
that the A ct o f 1927 “ vests exclusive juris­
diction in the United States over that part 
o f the Chickamauga and Chattanooga Na­
tional M ilitary Park located within the 
State o f  Georgia”  and that violations of 
law occurring on the ceded lands are en­
forceable only by the proper authorities 
o f the United States. As this adminis­
trative construction is a permissible one we 
find it persuasive and we think that the 
debated question o f jurisdiction should be 
settled by construing the A ct o f 1927 in 
the same way. 17

17 The full text of the opinion (No. 4311) is set forth as 
Appendix C, infra, p. 34; see, also, Opinion No. 2979, Solic­
itor, Department of Agriculture, dated December 18, 1940, 
Appendix C, infra, p. 38.

525406— 13------4



2 2

B. Congress has declined to accept concurrent 
jurisdiction over lands acquired for national 
forests

The same result, we think, is reached if  the 
acquisition o f the land in question is not governed 
by R. S. 355. As we have stated, the lands upon 
which the crimes were committed were acquired 
in 1940 by the United States through the Secretary 
o f Agriculture for  inclusion in the Kisatchie 
National Forest in Louisiana. The fact that they 
were being used for  military purposes at the 
time the offenses were committed does not, we 
believe, affect the jurisdictional problem here 
presented, fo r  this Court has held that ‘ ‘ The 
character and purposes o f its occupation having 
been officially and legally established by that 
branch o f the government which has control over 
such matters, it is not open to the courts, on a 
question o f jurisdiction, to inquire what may be 
the actual uses to which any portion o f the reserve 
is temporarily put.” 18 Benson v. United States, 
146 U- S. 325, 331; see also, Williams v. Arling­
ton Hotel Co., 22 F . (2d ) 669, 670-671 (C. C. A. 
8 ) ;  State v. Bruce, 104 Mont. 500 (1937).

B y  A ct No. 90 in 1922, as amended by A ct No. 
71 in 1924 (D art ’s Statutes o f Louisiana, 3329), 
Appendix, infra, p. 31, Louisiana consented to

18 The permission to use the lands given to the W ar De­
partment by the Secretary of Agriculture was only tem­
porary. See Exhibit G -l ,  filed in the court below, a copy of 
which has been filed with the Clerk of this Court.



23

the acquisition by the United States o f lands 
within the borders o f the state for  national 
forests—

* * * provided that the state shall retain,
a concurrent jurisdiction with the United 
States in and over such lands so that civil 
process in all cases and such criminal pro­
cess as may issue under the authority o f 
the state against the person charged with a 
commission o f any crime without or within 
the said jurisdiction may be executed 
thereon in like manner as before the 
passage o f this act.

It  is thus clear that the State offered to cede to 
the United States concurrent jurisdiction over 
lands acquired for  national forests. W e think, 
however, that Section 12 o f the W eeks Forestry 
Act o f March 1, 1911, 36 Stat. 963, 16 U. S. C., 
Section 480, shows that Congress has declined to 
accept such a tender as to forest lands. That 
section provides that—

The jurisdiction, both civil and criminal, 
over persons within national forests shall 
not be affected or changed by reason o f 
their existence, except so far as the punish­
ment o f offenses against the United States 
therein is concerned ;19 the intent and

19 This reference to “offenses against the United States” 
meant those federal criminal laws applicable throughout 
the nation, or offenses relating to the protection of federal 
property. A t that time, and indeed prior to the Act of June 
11, 1940 (54 Stat. 304), amending Section 272 of the Crim­
inal Code (18 U. S. C., Section 451, Third), no other fed-



24

meaning o f this provision being that the 
State wherein any such national forest is 
situated shall not, by reason o f the estab­
lishment thereof, lose its jurisdiction, nor 
the inhabitants thereof their rights and 
privileges as citizens, or be absolved from  
their duties as citizens o f the State.20

The jurisdiction over persons within the forest 
would be both “ affected”  and “ changed”  within 
the meaning o f this provision i f  they were sub­
jected both to state laws and to the federal laws 
applicable to federal lands instead o f to the 
form er alone.21

The Department o f Agriculture, which is 
charged with the supervision o f the national fo r ­
ests, has administratively taken the view that 
under this statute the United States does not have 
concurrent jurisdiction over national forests. In  
Opinion No. 4311, dated July 18, 1942, the So-

eral criminal laws applied to lands over which the United 
States did not have exclusive jurisdiction. See also n. 8, 
p. 9, supra.

20 Substantially the same statutory provisions may be 
found in the Bankhead Act (Act of June 29, 1936, c. 868, 
sec. 1, 49 Stat. 2035, 40 U. S. C. 431) applying to resettle­
ment projects, and the Act of June 29, 1936, c. 860, sec. 1, 
49 Stat. 2026, 40 U. S. C. 421, applying to low-cost housing 
and slum-clearance projects.

21 For example, persons could be prosecuted in both courts 
for the same offense, inasmuch as “the double-jeopardy pro­
vision of the Fifth Amendment does not stand as a bar to 
federal prosecution though a state conviction based on the 
same acts has already been obtained” (Jerome v. United 
States, No. 325, this Term, decided February 1,1943).



25

licitor o f the Department o f Agriculture held 
that the A ct o f October 9, 1940 (c. 785, sec. 1, 
54 Stat. 1058 (18 U. S. C. 576 )), authorizing 
United States Commissioners to try petty offenses 
“ committed in any place over which the Con­
gress has exclusive power to legislate or over 
which the United States has concurrent jurisdic­
tion ”  is inapplicable to national forests. The 
opinion states:

The exercise o f exclusive jurisdiction by 
the United States over lands within na­
tional forests prior to February 1, 1940, 
was precluded by the provisions o f Title 
16, U. S. S. § 480 * * *.

Since the section expressly provides that 
the State “ shall not * * * lose its ju ­
risdiction,”  it follows that the United States 
did not, prior to February 1, 1940, acquire 
exclusive jurisdiction.

The remaining question for  consideration 
is whether the United States, prior to Feb­
ruary 1, 1940, acquired concurrent juris­
diction over national forest lands. In  our 
opinion, section 480, supra, also requires a 
negative answer to this question. The ac­
quisition o f concurrent jurisdiction over na­
tional forest lands wrould mean that the 
United States, as well as the State, has 
general legislative authority with respect to 
persons and property located on such lands. 
In  the exercise o f such authority the Con­
gress o f  the United States could pass laws



26

with respect to persons and property on 
such lands which might otherwise be be­
yond the scope o f the legislative authority 
o f Congress. F or example, Congress, in 
exercising concurrent jurisdiction, might 
impose a personal property tax on the 
property o f persons residing on national 
forest lands, with criminal penalties for  at­
tempts to evade the tax. But i f  such juris­
diction were to be exercised by the Congress, 
then “ The jurisdiction, both civil and crim­
inal, over persons”  within the forests would 
be “ affected”  and “ changed”  contrary to* 
the declaration o f Congress in section 480, 
supra. Also, Congress might pass a law 
inconsistent with a State law. The Federal 
enactment in such a case would probably 
take precedence. I f  the State law was one 
conferring a right or a privilege on the 
inhabitants o f  the State, they would lose 
this right. This, in a very real sense, would 
involve a loss o f jurisdiction by the State.

I t  is our opinion, therefore, that section 
480, supra, precluded the exercise o f con­
current jurisdiction as well as exclusive 
jurisdiction by the United States over na­
tional forest lands, prior to February 1, 
1940. * * *

This administrative construction o f the statute 
would seem to be correct. Cf. Bowen v. Johnston, 
supra, p. 21. Thus we think that, apart from  R. S. 
355, the United States has not accepted concurrent 
jurisdiction over national forest lands despite the



27

express grant o f such jurisdiction in the 1922 
Louisiana Act.22

CO N CLU SIO N

W e respectfully submit that the first question 
certified should be answered in the affirmative and 
the second in the negative.

Charles F ah y ,
Solicitor General.

W endell B erge,
Assistant Attorney General.

Oscar A. P rovost,
Special Assistant to the Attorney General.

W . M arvin Sm ith , >
R obert L. Stern, /< _

Attorneys.
M ay 1943.

22 It  is unnecessary to determine whether the 1940 amend­
ment to R. S. 355 supersedes the Weeks Forestry Act so as 
to authorize the Secretary of Agriculture now to accept 
jurisdiction over national forest lands, inasmuch as no such 
acceptance was filed in this case. That question was ex­
pressly reserved in the Opinion of the Solicitor of the De­
partment, p. 36, infra.



A P P E N D IX  A

constitutional and statutory provisions involved

1. Article I, Section 8, Clause 17, o f the Consti­
tution provides, in p a rt:

The Congress shall have Pow er * * * 
To exercise exclusive Legislation * * *
over all Places purchased by the Consent of 
the Legislature o f the State in which the 
Same shall be, fo r  the Erection o f Forts, 
Magazines, Arsenals, dock Yards, and other 
needful Buildings.

2. Section 272 o f the Criminal Code, as amended 
(18 U. S. C. 451), defining the places over which 
the provisions o f the Criminal Code shall be ap­
plicable, provides, in p a rt:

The crimes and offenses defined in sec­
tions 451-468 o f this title shall be punished
as herein prescribed:

* * * * * * *

Third. W hen committed within or on 
any lands reserved or acquired for  the use 
o f the United States, and under the exclu­
sive or concurrent jurisdiction thereof, or 
any place purchased or otherwise acquired 
by the United States by consent o f the legis­
lature o f the State in which the same shall 
be, fo r  the erection o f a fort, magazine, ar­
senal, dockyard, or other needful building. 

* * * * * * *
* * * (Mar. 4, 1909, ch. 321, § 272, 35 

Stat. 1142; June 11, 1940, ch. 323, 54 Stat. 
304.)



29

3. Section 278 o f the Criminal Code (18 U. S.
C. 457) provides that:

W hoever shall commit the crime o f rape 
shall suffer death.

4. Section 355 o f the Revised Statutes, as 
amended (c. 793, 54 Stat. 1083, 40 U. S. C. 255), 
provides, in p art:

*  *  *  *  *  *  *

Notwithstanding any other provision o f 
law, the obtaining o f exclusive jurisdiction 
in the United States over lands or interests 
therein which have been or shall here­
after be acquired by it shall not be required; 
but the head or other authorized officer of 
any department or independent establish­
ment or agency o f the Government may, in 
such cases and at such times as he may deem 
desirable, accept or secure from  the State in 
which any lands or interests therein under 
his immediate jurisdiction, custody, or con­
trol are situated, consent to or cession o f such 
jurisdiction, exclusive or partial, not there­
tofore obtained, over any such lands or in­
terests as he may deem desirable and indi­
cate acceptance o f such jurisdiction on be­
half o f the United States by filing a notice 
o f such acceptance with the Governor o f 
such State or in such other manner as may 
be prescribed by the laws o f the State where 
such lands are situated. Unless and until 
the United States has accepted jurisdiction 
over lands hereafter to be acquired as afore­
said, it shall be conclusively presumed that 
no such jurisdiction has been accepted.



30

5. Section 12 o f the W eeks Forestry Act (16 
U. S. C. 480) providing fo r  jurisdiction over na­
tional forests, reads:

The jurisdiction, both civil and criminal, 
over persons within national forests shall 
not be affected or changed by reason o f 
their existence, except so far as the punish­
ment o f offenses against the United States 
therein is concerned; the intent and mean­
ing o f this provision being that the State 
wherein any such national forest is situated 
shall not, by reason o f the establishment 
thereof, lose its jurisdiction, nor the inhabi­
tants thereof their rights and privileges as 
citizens, or be absolved from  their duties as 
citizens o f the State. (June 4, 1897, ch. 2, 
§ 1, 30 Stat. 36; Mar. 1, 1911, ch. 186, § 12, 
36 Stat. 963.)

6. Section 2 o f Louisiana Act No. 12 (1892) 
(D a rt ’s Statutes o f Louisiana, § 2898), consenting 
to the purchase o f lands by the United States fo r  
any purpose, reads as follows:

The United States may enter upon and 
occupy any land which may have been, or 
may be purchased or condemned, or other­
wise acquired, and shall have the right of 
exclusive jurisdiction over the property so 
acquired during the time that the United 
States shall be or remain the owner thereof 
for all purposes, except the administra­
tion of the criminal laws of said state, and 
the service of civil process of said state 
therein, and shall hold the same exempt 
from all state, parochial, municipal, or 
other taxation.

7. Louisiana Act No. 90 (1922), as amended by 
Act No. 71 (1924) (Dart’s Statutes of Louisiana



31

§ 3329), consenting to the purchase o f lands by the 
United States for  national forests, reads as 
fo llow s:

3329. Establishment of national forests.—  
The consent o f the state o f Louisiana is 
hereby given to the acquisition by the 
United States by purchase or g ift o f such 
land in Louisiana, as in the opinion o f the 
federal government may be needed for  the 
establishment o f a national forest or fo r ­
ests in this region; provided that the state 
shall retain a concurrent jurisdiction with 
the United States in and over such lands so 
that civil process in all cases and such 
criminal process as may issue under the au­
thority o f the state against the person 
charged with a commission o f any crime 
without or within the said jurisdiction may 
be executed thereon in like manner as be­
fore the passage o f this act. Power is 
hereby conferred on congress to pass such 
laws as it may deem necessary to the ac­
quisition as herein provided for  incorpora­
tion in said national forest o f such forests 
covered or cut-over lands lying in Louisiana 
as in the opinion o f the federal government 
may be needed. The power is hereby con­
ferred upon congress to pass such laws and 
to make or provide for the making o f  such 
rules and regulations o f both civil and crim­
inal nature and provide punishment for  vio­
lation thereof, as in its judgment may be 
necessary for  the management, control and 
protection o f such lands as may from  time to 
time be acquired by the United States under 
the provisions o f this section.



A P P E N D IX  B

The letter o f the Secretary o f W ar, dated Jan­
uary 2, 1943, to the Governor o f Louisiana, ac­
cepting exclusive jurisdiction over the lands in­
volved, reads as follow s:

Honorable Sam H. Jones,
Governor of Louisiana,

Baton Rouge, Louisiana.
Dear Governor Jones: This is to advise 

you that the United States has acquired 
title in fee simple to certain lands located 
hi the State o f Louisiana, more fully de­
scribed in the list o f military reservations 
inclosed, designated as Exhibit “ A ” . Fur­
ther information, i f  desired, as to the de­
scription o f said lands may be obtained 
from  the Office o f the U. S. Division Engi­
neer o f the Southwestern Division, Santa 
Fe Building, 1114 Commerce Street, Dallas, 
Texas.

Pursuant to section* 355, Revised Stat­
utes, as amended by the acts o f February 
1, 1940 (54 Stat. 19), and October 9, 1940 
(54 Stat. 1083; 40 U. S. C. 255), notice is 
hereby given that the United States accepts 
exclusive jurisdiction over these lands, e f­
fective as o f the 15th day o f January 1943, 
at 12: 00 noon. The transfer o f such juris­
diction has been authorized by virtue o f the 
provisions o f sections 1 and 2 o f A ct No. 12 
o f the Acts o f 1892, as amended and reen­
acted by Act No. 31, approved July 5, 1942 
(Acts o f Louisiana, 1942, p. 119).

(32)



33

Return o f the duplicate copy o f this let­
ter, with your indorsement thereon desig­
nating time o f receipt o f this acceptance by 
your office, would be appreciated.

Sincerely yours,
H enry L. Stimson,

Secretary of War.

The original o f this letter o f acceptance together 
with Exhibit “ A ”  was received in the Office o f the 
Governor on the 7th day o f January, 1943.

Sam  H. Jones,
Governor of the State of Louisiana.



A P P E N D IX  C

Opinion No. 4311 o f the Solicitor, Department 
o f  Agriculture, reads as fo llow s:

July 18, 1942.
Mr. P hilip M. D imoh,

Regional Attorney, Office of the Solici­
tor, U. S. D. A., 632 Bankers Securi­
ties Building, Juniper and Walnut 
Streets, Philadelphia, Pennsylvania.

Dear Mr. D im o n : Mr. A. R. DeFelice, 
form er Regional Law Officer, has asked us 
to furnish our views concerning the ques­
tion whether United States commissioners 
are authorized to try persons charged with 
violations, on national forest lands, o f the 
Act o f November 15, 1941 (Pub. L. No. 293, 
77th Cong., 1st Sess.), which amends Sec­
tions 52 and 53 o f the Criminal Code (18 
U. S. C .106,107).

The Act o f October 9, 1940, entitled “ An 
A ct To confer jurisdiction upon certain 
United States commissioners to try petty 
offenses committed on Federal reserva­
tions”  (18 U. S. C. 576-576d; 54 Stat. 
1058), provides, in part:

“ That any United States commissioner 
specially designated for  that purpose by 
the court by which he was appointed shall 
have jurisdiction to try and, i f  found 
guilty, to sentence persons charged with 
petty offenses against the law, or rules and 
regulations made in pursuance o f law, com­
mitted in any place over which the Con­
gress has exclusive power to legislate or 
over which the United States has concur­
rent jurisdiction, and within the judicial

(34)



35

district for  which such commissioner was 
appointed. The probation laws shall be 
applicable to persons so tried before 
United States commissioners. For the 
purposes o f this Act the term ‘ petty o f­
fense ’ shall be defined as in section 335 o f 
the Criminal Code (U . S. C., title 18, sec. 
541). * * * ”

"We concur in Mr. DeFelice’s conclusion 
that the jurisdiction o f United States com­
missioners under this act does not extend to 
violations o f Section 52 o f the Criminal 
Code, as amended (18 U. S. C. 106 (Supp. I  
(1 9 4 1 ))) , since the punishment for  viola­
tions o f this section is greater than that 
prescribed for  a “ petty offense,”  being a 
fine o f not more than $5,000, or imprison­
ment o f not more than five years, or both.

Section 53 o f the Criminal Code, as 
amended (18 U. S. C. 107 (Supp. I  
(1941 )), prohibits the builder o f a fire 
from  leaving the fire without totally ex­
tinguishing it, and pertains to lands owned, 
controlled, or leased by, or under the par­
tial, concurrent, or exclusive jurisdiction 
of, the United States. The penalty for  a 
violation o f this section is such as to con­
stitute it a petty offense, and, consequently, 
a person charged with such a violation 
can be tried before a United States com­
missioner, provided the violation occurs 
upon lands over which the United States 
has concurrent or exclusive jurisdiction. 
Therefore, i f  the Forest Service desires to 
prosecute violations o f this section occur­
ring on national forest lands before United 
States commissioners, it is necessary to de­
termine whether the United States has 
either exclusive or concurrent jurisdiction 
over such lands.



36

A s Mr. DeFelice pointed out in his letter, 
the acquisition o f concurrent jurisdiction 
over lands acquired by the United States 
after February 1, 1940, is governed by Sec­
tion 355 o f the Revised Statutes, as 
amended, on that date by Pub. L. No. 825, 
76th Cong., 3d Sess. (40 U. S. C. 255). This 
section, o f course, also governs the acquisi­
tion o f exclusive jurisdiction over such 
lands. In  addition, the section governs the 
acquisition o f exclusive and concurrent ju ­
risdiction over lands acquired before that 
date if, on that date, jurisdiction was not in 
the United States. Op. Sol. 3268. The ques­
tion whether the United States may acquire 
either exclusive or concurrent jurisdiction 
over national forest lands pursuant to R. S. 
355, in view o f 16 U. S. C. 480, infra, need 
not be decided at this time, since this has not 
been proposed. Also, since no action has 
been taken pursuant to the amendment o f 
February 1, 1940, to section 355, it is clear 
that neither exclusive nor concurrent juris­
diction over any national forest lands has 
been acquired since that date. The ques­
tion, therefore, is whether the United States 
had either exclusive or concurrent jurisdic­
tion over national forest lands on or prior 
to February 1, 1940. On this question, the 
aforementioned amendment to section 355 
has no bearing. Op. Sol. 3268.

The exercise o f exclusive jurisdiction by 
the United States over lands within national 
forests prior to February 1, 1940, was pre­
cluded by the provisions o f Title 16, U. S. C. 
§ 480. That section provides:

“ The jurisdiction, both civil and criminal, 
over persons within national forests shall 
not be affected or changed by reason o f their 
existence, except so far as the punishment 
o f offenses against the United States therein



37

is concerned; the intent and meaning of this 
provision being that the State wherein any 
such national forest is situated shall not, by 
reason of the establishment thereof, lose its 
jurisdiction, nor the inhabitants thereof 
their rights and privileges as citizens, or be 
absolved from their duties as citizens of the 
State. ’ ’

Since the section expressly provides that 
the State “ shall not * * * lose its ju ­
risdiction,”  it follows that the United States 
did not, prior to February 1, 1940, acquire 
exclusive jurisdiction.

The remaining question for consideration 
is whether the United States, prior to Feb­
ruary 1, 1940, acquired concurrent juris­
diction over national forest lands. In  our 
opinion, section 480, supra, also requires a 
negative answer to this question. The ac­
quisition o f concurrent jurisdiction over na­
tional forest lands would mean that the 
United States, as well as the State, has gen­
eral legislative authority with respect to 
persons and property located on such lands. 
In  the exercise o f such authority the Con­
gress o f the United States could pass laws 
with respect to persons and property on 
such lands which might otherwise be be­
yond the scope o f the legislative authority 
o f Congress. For example, Congress, in 
exercising concurrent jurisdiction, might 
impose a personal property tax on the prop­
erty o f persons residing on national forest 
lands, with criminal penalties for  attempts 
to evade the tax. But i f  such jurisdiction 
were to be exercised by the Congress, then 
“ The jurisdiction, both civil and criminal, 
over persons”  within the forests would be 
“ affected”  and “ changed”  contrary to the 
declaration o f Congress in section 480, su­
pra. Also, Congress might pass a law in-



38

consistent with a State law. The Federal 
enactment in such a case would probably 
take precedence. I f  the State law was one 
conferring a right or a privilege on the in­
habitants o f the State, they would lose this 
right. This, in a very real sense, would in­
volve a loss o f jurisdiction by the State.

I t  is our opinion, therefore, that section 
480, supra, precluded the exercise o f concur­
rent jurisdiction as well as exclusive juris­
diction by the United States over national 
forest lands, prior to February 1, 1940. As 
already pointed out, no jurisdiction has 
been acquired since that time pursuant to 
the amendment to E. S. 355, passed on Feb­
ruary 1, 1940 (assuming without deciding 
that this would be possible). Therefore, 
since United States commissioners have ju ­
risdiction to try persons charged with the 
violation o f Section 53 o f the Criminal 
Code, as amended (18 U. S. C. 107 (Supp. 
I  (1 9 4 1 ))) , only when the alleged violation 
occurred on lands over which the United 
States has exclusive or concurrent jurisdic­
tion, it is our opinion that such commission­
ers do not have jurisdiction to try persons 
charged with any such violations committed 
on national forest lands.

Sincerely yours,
(Signed) E gbert H . Shields,

Solicitor.
Opinion No. 2979 o f the Solicitor, Department 

o f Agriculture, reads as follow s:
December 18, 1940. 

Mr. E dward F. M ynatt,
Regional Law Officer,

Office o f the Solicitor, U. S. D. A., 
Glenn Building, Atlanta, Ga.

D ear M r. M ynatt : Deference is made to 
your letter o f November 18, 1940, concern-



3y

ing an interpretation o f the last paragraph 
o f section 355 o f the Revised Statutes (U. 
S. C., Title 40, § 255), as amended by the 
act o f October 9,1940 (Public, No. 825, 76th 
Cong., 3d Sess.), which reads as follow s: 

“ Notwithstanding any other provision o f 
law, the obtaining o f exclusive jurisdiction 
in the United States over lands or interests 
therein which have been or shall hereafter 
be acquired by it shall not be required; but 
the head or other authorized officer o f any 
department or independent establishment 
or agency o f the Government may, in such 
cases and at such times as he may deem de­
sirable, accept or secure from  the State in 
which any lands or interests therein under 
his immediate jurisdiction, custody, or con­
trol are situated, consent to or cession o f 
such jurisdiction, exclusive or partial, not 
theretofore obtained, over any such lands or 
interests as he may deem desirable and in­
dicate acceptance o f such jurisdiction on be­
half o f the United States by filing a notice 
o f such acceptance with the Governor o f 
such State or in such other manner as may 
be prescribed by the laws o f the State where 
such lands are situated. Unless and until 
the United States has accepted jurisdiction 
over lands hereafter to be acquired as afore­
said, it shall be conclusively presumed that 
no such jurisdiction has been accepted.”

This provision was first made a part of 
section 355 by an amendment approved Feb­
ruary 1, 1940 (Public No. 409— 76th Cong., 
3d Sess.), so that its provisions referring 
to lands “ heretofore”  or “ hereafter”  ac­
quired must be applied as o f February 1, 
1940, rather than October 9,1940.

You state that the Regional Forester has 
asked to be advised o f the procedure which 
must be followed in order to comply with



40

this provision o f the statute. You say that 
you do not believe it is necessary to take 
any steps under the procedure provided in 
the amendment to obtain jurisdiction over 
lands acquired by the United States pursu­
ant to the W eeks A ct (U . S. C., Title 16, 
§§ 480, 500, 513-15, 517-19, 521, 552) before 
the effective date o f the amendment, but that 
you would like to have the opinion o f this 
office as to the necessity o f following the pro­
cedure with regard to lands acquired after 
the effective date o f the amendment.

In  substance, the amendment provides 
that:

(1 ) The United States is not required 
to obtain exclusive jurisdiction over any 
lands acquired by it before or after Febru­
ary 1,1940;

(2 ) Jurisdiction, exclusive or partial, 
may be obtained by the head o f a depart­
ment over lands under his jurisdiction (ac­
quired before or after February 1, 1940) 
“ in such cases and at such times as he may 
deem desirable”  by following the procedure 
established by the amendment;

(3 ) I f  jurisdiction, exclusive or partial, 
is not accepted or secured in the manner 
provided by the amendment, it is conclu­
sively presumed, as to lands acquired after 
February 1, 1940, that no jurisdiction (ex­
clusive or partial) has been accepted by the 
United States.

As to lands acquired before February 1, 
1940.— This office concurs in your opinion 
that it is not necessary to take steps to ob­
tain jurisdiction from  the State over lands 
acquired under the W eeks Act before Feb­
ruary 1, 1940. The amendment does not 
alter the jurisdiction o f the Federal Gov­
ernment, or o f the States, over lands ac­
quired before February 1, 1940, but such



41

jurisdiction, if  any, as was obtained by the 
Government when the lands were acquired, 
by virtue o f the laws o f the United States 
and the State consent and cession statutes 
that were then in effect, remains undis­
turbed. As to such lands, it merely pro­
vides a simplified procedure for  the ac­
quisition o f jurisdiction “ not theretofore 
obtained.”  W hile cases may arise in which 
the United States may wish to acquire addi­
tional jurisdiction over lands purchased 
and to avail itself o f this procedure in order 
before the effective date o f the amendment 
to do so, it is believed that such cases will 
be rare and camiot at this time be antici­
pated. Therefore, as a general rule, no pro­
cedure should be established for  obtaining 
additional jurisdiction over these lands as 
a routine matter.

As to lands acquired after February 1, 
1940.— It is the opinion o f this office that it 
will not normally be necessary to take steps 
to obtain jurisdiction from  the State over 
lands acauired under the W eeks A ct after 
February 1, 1940.

P rior to the amendment o f section 355, 
the United States could acquire exclusive 
jurisdiction over lands in one o f three w ays: 
(1 ) by reservation o f such jurisdiction over 
designated areas at the time o f admission 
o f a State into the U nion ; (2 ) by purchase, 
with the consent o f the State, “ fo r  the erec­
tion o f forts, magazines, arsenals, dock­
yards and other needful buildings”  (U . S. 
Const., Art. I, § 8, cl. 1 7 ); or (3 ) by an act 
o f the State legislature expressly ceding 
such jurisdiction. The same was true o f 
partial jurisdiction (James v. Dravo Con­
tracting Co., 302 U. S. 134 (1937)). This 
is still true under the amendment, but 
whereas jurisdiction consented to, or ceded,



4?

by a State act was normally presumed to 
have been accepted, the amendment now 
provides that it shall be conclusively pre­
sumed that no jurisdiction has been ac­
cepted, unless it is affirmatively accepted in 
the manner provided in the amendment. 
That being the case, State laws, such as 
§ 2050 o f the South Carolina Code (1932), 
consenting to the acquisition o f lands for  
national forest purposes, as required by 
section 7 o f the Weeks A ct (U . S. C., Title 
16, § 517), and § 2099 o f the Uorth Carolina 
Code (1939), conferring exclusive jurisdic­
tion upon the United States over the game 
and fish in national forests, will not result 
in the acquisition o f jurisdiction by the 
Federal Government, unless action is taken 
to accept such jurisdiction, pursuant to the 
procedure provided in the amendment.

The fact that the United States will not 
obtain any jurisdiction, in the ordinary 
course o f events, over lands acquired after 
the effective date o f the amendment will not 
normally cause any embarrassment in the 
administration o f the Federal programs for 
which the lands were acquired.

Article IV , Section 3, Clause 2, o f the 
United States Constitution provides in part 
as follows:

“ The Congress shall have Power to dis­
pose o f and make all needful Rules and 
Regulations respecting the Territory or 
other Property belonging to the United 
States; * * * .”

In  Surplus Trading Go. v. Cook, 281 U. S. 
647 (1930), the Court said (p. 650):

“ I t  is not unusual for  the United States 
to own within a State lands which are set 
apart and used fo r  public purposes. Such 
ownership and use without more do not



43

withdraw the lands from the jurisdiction of 
the State. On the contrary, the lands re­
main part of her territory and within the 
operation of her laws, save that the latter 
cannot affect the title of the United States 
or embarrass it in using the lands or inter­
fere .with its right of disposal.”  [Italics 
supplied.]

In  Utah Power cf- Light Co. v. United 
States, 243 IT. S. 389, 404 (1917), the Court 
said :

“ True, for many purposes a State has 
civil and criminal jurisdiction over lands 
within its limits belonging to the United 
States, but this jurisdiction does not extend 
to any matter that is not consistent with full 
power in the United States to protect its 
lands, to control their use and to prescribe 
in what manner others may acquire rights 
in them.”  [Italics supplied.]

This power o f the Government over its 
lands results from  the ownership o f the 
lands by the Federal Government, and does 
not depend upon the acquisition o f jurisdic­
tion. It is an inherent power stemming 
from  the above-quoted clause o f the Consti­
tution, and is independent o f jurisdiction, 
exclusive or partial, that may be acquired by 
the Federal Government. This point is well 
illustrated by Hunt v. United States, 278 
U. S. 96 (1928), in which it was held.that the 
Secretary o f Agriculture, pursuant to Con­
gressional authority, could order a reduction 
in the number o f deer in a game preserve, 
despite the fact that it was contrary to the 
game laws o f Arizona, the State in which the 
lands were located. The Court said
(p. 100):

“ * * * the power of the United States 
to thus protect its lands and property does



44

not admit o f doubt [citing cases], the game 
laws or any other statutes o f the State to the 
contrary notwithstanding. ’ ’

I t  should be noted that when the Hunt 
case was decided, Arizona apparently did 
not have a law conferring exclusive jurisdic­
tion on the United States over the game and 
fish on national forest lands, such as § 2099 
o f North Carolina Code (1939), which was 
mentioned in Chalk v. United States, 111 F. 
(2d) 207 (C. C. A. 4th, 1940), to which you 
referred. It is, therefore^ clear that the 
United States does not need to obtain juris­
diction in order to regulate game on national 
forests. In  the Chalk case itself the court 
said (p. 211) that the exclusive jurisdiction 
ceded bv the statute was “ in addition to the 
inherent power o f the Government to pro­
tect its property.”

Numerous other cases could be cited to 
the effect that the power o f Congress over 
lands o f the United States is superior to 
the power o f the State, and where an exer­
cise o f this power by the Federal Govern­
ment, pursuant to an authorized use o f the 
lands, conflicts with that o f the State, the 
latter is superseded. (See Op. Sol. No. 
2318, to Dr. Bennett, A pril 1, 1940; Op. 
Sol. No. 1417, to Dr. Gabrielson, M ay 17, 
1939; and eases cited in these opinions.)

One o f the purposes o f the amendment 
apparently was to prevent in the future 
some o f the confusion that has occurred in 
the past concerning the extent o f State 
jurisdiction over Federally-owned lands and 
to make the acquisition o f jurisdiction by the 
Federal Government the exception rather 
than the general rule. (See the excerpt 
from  the letter o f the Attorney General to 
the Chairman o f the House Committee on 
Public Buildings and Grounds, dated July



28, 1939, commenting on H. R. 7293, which 
was later enacted as Public, No. 409, 76th 
Cong., 3d Sess. (86 Cong. Rec., January 
18, 1940, at 765).

Hence, it is seldom, i f  ever, necessary for 
the Federal Government to acquire any 
jurisdiction, exclusive or partial, from  the 
States in order to carry out the purposes 
fo r  which lands are acquired. Thus, ex­
clusive or partial jurisdiction will only be 
desired in exceptional cases, where, for  
special reasons, the Government may wish 
to have the States exclude themselves from  
jurisdiction, even though an exercise of 
the jurisdiction would not interfere with 
the activities o f the Federal Government.

Consequently, on the basis o f the facts 
available to us, we know o f no reason why 
general notices accepting jurisdiction, ex­
clusive or partial, need be sent to the Gov­
ernors o f the States.

A  copy o f this opinion is being sent to 
the Chief o f the Forest Service, so that 
he may consider whether there are cer­
tain cases in which the Forest Service 
feels that it is desirable to obtain jurisdic­
tion from  the State over lands administered 
by it. W ill you please also let us have 
any ideas which you may have on the 
subject.

V ery truly yours,
[Signed] M astin G. W hite,

Solicitor.

4 f,



A P P E N D IX  D

The full text o f the Opinion o f the Judge A d­
vocate General o f the A rm y (J . A . G. 680.2) 
reads as follow s:

October 17, 1941.
Military Reservations 
JA G  680.2
Memorandum for the Assistant Chief o f 

Staff, G-4.
Subject: Acquisition o f jurisdiction over 

lands acquired by the W ar Department. 
1. B y  memorandum (G -4/29326-33 AG  

601.1 (9-2U -41)) dated September 30,1941, 
there has been referred to this office, fo r  
comment and recommendation, a file o f 
correspondence relative to the above sub­
ject. Included in the file is a memorandum 
from  The Quartermaster General, dated 
September 24, 1941, requesting that an ex­
pression o f policy be made in connection 
with the matter o f acquiring jurisdiction, 
and a memorandum from  the Under Secre­
tary o f W ar, dated September 25, 1941, 
requesting that action be taken to acquire 
exclusive jurisdiction over all military 
reservations and industrial facilities here­
tofore or hereafter acquired by purchase or 
lease by the United States. There is also 
included in the file a copy o f a circular 
letter from  The Adjutant General to the 
commanding generals o f all corps areas, the 
Chief o f the^Air Corps, and the chiefs of 
all services, dated A pril 17, 1941, request­
ing their comments and recommendations 
as to whether exclusive or concurrent 
jurisdiction is desired over certain classes

(46)



47

of property set foi*tk therein, and a chait 
containing a summary o f the comments 
and recommendations received as a result
o f the circular letter.

2. The correspondence raises the ques­
tion o f the desirability o f acquiring juris­
diction over three types o f property, 
namely:

a. Land purchased by the United States.
b. Land leased to the United States.
c. Land in which the United States has 

been granted easements.
The question is also raised with respect 

to the extent o f the jurisdiction which 
should be acquired.

3. Jurisdiction may be acquired by the 
United States either (a ) by purchase of 
land with the consent o f the legislature of 
the state wherein the land lies, under the 
provisions o f Article I, section 8, clause 17 
o f the Federal Constitution, or (b ) by 
direct cession o f such jurisdiction to the 
United States. In either event express ac­
ceptance o f jurisdiction by the United 
States is required by the provisions o f sec­
tion 355 o f the Revised Statutes as 
amended by the act o f February 1, 1940 
(54 Stat. 19), and the act o f October 9, 
1940 (54 Stat. 1083; 40 U. S. C. 255). Fur­
thermore, it is well settled that jurisdic­
tion acquired from  a state by the United 
States, whether by consent to the purchase 
or by cession, may be qualified in accord­
ance with agreements reached by the re­
spective governments (James Stewart & 
Go. v. Sadrakula, 309 U. S. 94, 99).

W ith reference to the lands over which 
the United States may acquire jurisdiction, 
the acts o f February 1, 1940, and October 
9, 1940, supra, provide that consent to or 
cession o f jurisdiction may be accepted or



48

secured over such lands or interests therein 
as may be desirable. Hence, it seems clear 
that in addition to the acquisition o f juris­
diction over land which it owns in fee, the 
United States may also acquire jurisdiction 
over land which it occupies under lease, 
and over land in which it has been granted- 
easements.

4. In  further considering the matter in 
question it may be observed that there are 
three types o f jurisdiction which may be 
acquired by the United States: exclusive, 
partial, and concurrent. W here the United 
States acquires exclusive jurisdiction com­
plete sovereignty is vested in the Federal 
Government, and control by the state is ter­
minated. In  such cases, however, there 
continue, in effect, until abrogated, those 
rules existing at the time the state surren­
ders jurisdiction which govern the rights 
o f the occupants o f the territory trans­
ferred ( Stewart v. Sadrakula, supra). F u ­
ture statutes o f the state, however, are not 
a part of the body of laws in the ceded 
area (ibid.). Partial jurisdiction vests in 
the United States in those instances where 
there is consent to or cession o f exclusive 
jurisdiction with a reservation o f some 
rights by the state, as, fo r  example, where 
the state reserves certain rights with re­
gard to taxation in the ceded area. It  also 
vests in those cases where there is a con­
sent to or cession o f jurisdiction fo r  a par­
ticular purpose, as, fo r  example, jurisdic­
tion in criminal matters. Concurrent 
jurisdiction results from  a consent to or ces­
sion o f jurisdiction with a retention o f con­
current jurisdiction by the state. Concur­
rent jurisdiction may be defined as the juris-



49

diction o f two powers over one and the same 
place (Nielsen v. State of Oregon, 212 U. S. 
315, 319). In such cases, therefore, the 
state and Federal Governments occupy an 
equal status with regard to jurisdiction, 
and the one first acquiring jurisdiction may 
prosecute and punish for  an act punish­
able by the laws o f both (ibid., p. 320).

In  connection with this discussion it is 
deemed pertinent to invite attention to the 
act o f June 11, 1940 (54 Stat. 304; 18 
U. S. C. 451), which amended section 272 
o f the Federal Criminal Code so as to make 
it applicable to all lands acquired for  the 
use o f the United States and under its ex­
clusive or concurrent jurisdiction. Section 
272 o f the Federal Criminal Code desig­
nates the areas in which the criminal laws 
o f the United States shall be effective. It 
follows, therefore, that the criminal laws of 
the United States are in effect in areas 
where the United States has concurrent or 
exclusive jurisdiction. Furthermore, with 
respect to such areas, where there is no 
Federal criminal law applicable to a par­
ticular matter, the law o f the state applica­
ble thereto and in force on February 1, 
1940, is effective, and a violator thereof will 
be deemed guilty o f a like offense and sub­
ject to a like punishment (act o f June 6, 
1940, 54 Stat. 234; 18 U. S. C. 468),

In  view o f the foregoing discussion, it 
appears that with respect to areas over 
which the United States has exclusive juris­
diction the only civil laws o f the state in 
effect are those governing the rights o f the 
occupants o f the territory and in force at 
the time jurisdiction was acquired. Such 
laws, o f course, may be abrogated by Con-



50

gress. No criminal laws o f the state are 
effective unless covered by the act o f June 
6, 1940, supra, The same principles may 
be applicable with respect to areas over 
which the United States has partial juris­
diction, the definite determination in such 
cases depending, however, on the nature of 
the rights reserved by the state. In  connec­
tion with areas over which concurrent juris­
diction has been acquired, the laws o f both 
the state and Federal Governments are in 
effect.

It  may be observed that section 355 o f the 
Revised Statutes, as amended, supra, pro­
vides for the acceptance by the Secretary 
o f W a r o f two types o f jurisdiction, namely, 
exclusive and partial. As indicated above, 
there is also a type o f  jurisdiction com­
monly referred to as “ concurrent.”  I t  is 
believed that the term concurrent jurisdic­
tion is embraced within the term partial 
jurisdiction, fo r  the reason that in cases 
where a state has ceded concurrent jurisdic­
tion the authority o f the United States is 
not exclusive o f state authority.

5. The question o f the extent o f jurisdic­
tion which should be acquired over lands 
o f the United States is a matter fo r  admin­
istrative determination. It would seem that 
in reaching such a determination considera­
tion should be given to the purposes for 
which the land is acquired and the extent 
o f administration and control which is de­
sired thereover. In  this connection, it is 
believed that the recommendations con­
tained in the chart referred to in paragraph 
1 hereof should be given careful considera­
tion. I t  must be borne in mind, however, 
that the laws o f the various states differ 
with respect to the procedure necessary fo r



ol

the acquisition o f jurisdiction. In many 
instances a special act o f the State legisla­
ture may be required. This is particularly 
true with respect to leased land and land in 
which the United States has easements, in­
asmuch as general acts o f cession usually 
relate only to land acquired in fee. Fur­
thermore, it may be observed that the states 
may be unwilling to cede more than concur­
rent jurisdiction over areas occupied by in­
dustrial plants operated by nongovern­
mental agencies. In  fact, this policy may 
prevail in some states with regard to any 
land not owed in fee by the United States.

6. In  summarizing, it is the opinion o f 
this office:

a. That jurisdiction may be acquired by 
the United States over lands which it oc­
cupies under lease or in which it owns ease­
ments, as well as over land which it owns 
in fee.

b. That the jurisdiction acquired by the 
United States may be either exclusive, 
partial, or concurrent.

c. That the question o f the extent o f 
jurisdiction which should be acquired is a 
matter fo r  administrative determination, 
concerning which no recommendation is 
made. In  this connection, however, it is 
desired to point out that for the better pro­
tection o f the interests o f the United 
States and to insure full and complete ad­
ministrative control o f the premises, un­
hampered by state laws and regulations, 
the obtaining o f exclusive jurisdiction in 
most cases would seem to be advisable, 
particularly over those areas owned in fee 
by the United States. W ith respect to 
land in which the United States has only 
a leasehold interest or easement, it is



52

doubtful whether all the states would be 
willing to cede exclusive jurisdiction to the 
United States, since such action would, 
among other things, remove such areas 
from  their taxing powers.

F or The Judge Advocate General:
[s] Oscar R. R and,

Oscar R. Rand,
Lieutenant Colonel, J. A. G. D.,

Chief of Section.

U. S . GOVERNMENT PRINTING OFFICE:  194s



SUPREME COURT OF THE UNITED STATES

No. 889.— O c t o b e r  T e r m , 1942.

Richard Philip Adams, John Walter 
Brodenave and Lawrence Mitchell, 

vs.
The United States of America and 

John S. Ryan, Warden.

On Certificate from the 
United States Circuit Court 
of Appeals for the Fifth 
Circuit.

[May 24, 1943.]

Mr. Justice B l a c k  delivered the opinion of the Court.

The Circuit Court of Appeals for the Fifth Circuit has cer­
tified to us two questions of law pursuant to § 239 of the Judicial 
Code. The certificate shows that the three defendants were soldiers 
and were convicted under 18 U. S. C. §§ 451, 457, in the federal 
District Court for the Western District of Louisiana, for the rape 
of a civilian woman. The alleged offense occurred within the con­
fines of Camp Claiborne, Louisiana, a government military camp, 
on land to which the government had acquired title at the time of 
the crime. The ultimate question is whether the camp was, at 
the time of the crime, within the federal criminal jurisdiction.

The Act of October 9, 1940, 40 U. S. C. § 255, passed prior to the 
acquisition of the land on which Camp Claiborne is located, pro­
vides that United States agencies and authorities may accept ex­
clusive or partial jurisdiction over lands acquired by the United 
States by filing a notice with the Governor of the state on which 
the land is located or by taking other similar appropriate action. 
The Act provides further: “ Unless and until the United States 
has accepted jurisdiction over lands hereafter to be acquired as 
aforesaid, it shall be conclusively presumed that no such juris­
diction has been accepted.”  The government had not given notice 
of acceptance of jurisdiction at the time of the alleged offense.1

The questions certified are as follows:
“ 1. Is the effect of the Act of Oct. 9, 1940, above quoted, to 

provide that, as to lands within a State thereafter acquired by

i  E xclusive ju r isd ic tion  over the lands on w hich the Camp is  loca ted  was 
accepted  f o r  the fed era l governm ent b y  the Secretary  o f  W a r  in  a  letter to  
the G overnor o f  L ou isiana , effective  Janu ary  15, 1943.



2 A dam s et al. vs. U nited States et al.

the United States, no jurisdiction exists in the United States to 
enforce the criminal laws embraced in United States Code Title 
18, Chapter 11, and especially Section 457 relating to rape, by 
virtue of Section 451, Third, as amended June 11, 1940, unless 
and until a consent to accept jurisdiction over such lands is filed 
in behalf of the United States as provided in said Act?

“ 2. Had the District Court of the Western District of Louisiana 
jurisdiction, on the facts above set out, to try and sentence the 
appellants for the offense of rape committed within the bounds of 
Camp Claiborne on May 10, 1942?”

Since the government had not given the notice required by the 
1940 Act, it clearly did not have either “ exclusive or partial”  jur­
isdiction over the camp area. The only possible reason suggested 
as to why the 1940 Act is inapplicable is that it does not require 
the government to give notice of acceptance of “ concurrent juris­
diction.”  This suggestion rests on the assumption that the term 
“ partial jurisdiction”  as used in the Act does not include “ con­
current jurisdiction.”

The legislation followed our decisions in James v. Bravo Con­
tracting Co., 302 U. S. 134; Mason Co. v. Tax Commission, 302 
U. S. 186; and Collins v. Yosemite Park Co., 304 U. S. 518. These 
cases arose from controversies concerning the relation of federal 
and state powers over government property and had pointed the 
way to practical adjustments. The bill resulted from a coopera­
tive study by government officials, and was aimed at giving broad 
discretion to the various agencies in order that they might obtain 
only the necessary jurisdiction.2 The Act created a definite method 
of acceptance of jurisdiction so that all persons could know whether 
the government had obtained “ no jurisdiction at all, or partial 
jurisdiction, or exclusive jurisdiction.” 3

Both the Judge Advocate General of the Army4 and the Solici­
tor of the Department of Agriculture5 have construed the 1940 
Act as requiring that notice of acceptance be filed if the govern­
ment is to obtain concurrent jurisdiction. The Department of

2 In the words of a sponsor of the bill, the object of the aet was flexibility, 
so “ that the head of the acquiring agency or department of the Government 
could at any time designate what type of jurisdiction is necessary; that is, 
either exclusive or partial. In other words it definitely contemplates leaving 
the question of extent of jurisdiction necessary to the head of the land­
acquiring agency.”  Hearings, House Committee on Buildings and Grounds, 
H. R. 7293, 76th Cong., 1st Sess., p. 5.

3 Ib id ., 7.
4 Ops. J. A. G. 680.2.
5 Opinion No. 4311, Solicitor, Department of Agriculture.



A d a m s et al. vs. U n ited  S ta tes et al. 3

Justice has abandoned the view of jurisdiction which prompted 
the institution of this proceeding, and now advises us of its view 
that concurrent jurisdiction can be acquired only by the formal 
acceptance prescribed in the act. These agencies co-operated in 
developing the act, and their views are entitled to great weight in 
its interpretation. Cf. Bowen v. Johnson, 306 U. S. 19, 29-30. 
Besides, we can think of no other rational meaning for the phrase 
“ jurisdiction, exclusive or partial”  than that which the admin­
istrative construction gives it.

Since the government had not accepted jurisdiction in the man­
ner required by the Act, the federal court had no jurisdiction of 
this proceeding. In this view it is immaterial that Louisiana 
statutes authorized the government to take jurisdiction, since at 
the critical time the jurisdiction had not been taken.6

Our answer to certified question No. 1 is Yes and to question 
No. 2 is No.

It is so ordered.

6 Dart’s Louisiana Stat. (Supp.) 2898. In view of the general applicability 
of the 1940 Act it is unnecessary to consider the effect of the Weeks Forestry 
Act, 16 U. S. C. 480 and the Louisiana statute dealing with jurisdiction in 
national forests, Dart’s Louisiana Stat. 3329, even though the land involved 
here was originally acquired for forestry purposes.