Wilson Gray, Wesley Gray, James L. Frank, and Tully Tsosie v. United States

Now, therefore, the said opinion dated September 15, 1967, in the above entitled cause, is hereby withdrawn; and a new opinion is ordered to be filed, as follows:

On August 24, 1965, the appellants, all Indians, were indicted by the Grand Jury of the United States District Court of Arizona for violation of Title 18, U.S.Code, Section 1153, the crime of Rape on an Indian Reservation. All appellants entered pleas of “Not Guilty” and the cause was tried to a jury at Prescott, Arizona, in June of 1966. The jury found all appellants guilty, and sentence was imposed upon each on June 27,1966. This appeal followed.

The facts, briefly, are these. The appellants attended a dance on the Navajo Reservation in the State of Arizona during the late evening hours of August 9, 1965. The four, together with two others, Jim Tsosie, age 12 and Wilson Blackwater, about the same age, left the dance at approximately midnight, and went to the area of the Dennehotso Chapter House on the Reservation.

Nearby the Chapter House were four cabins, and other dwellings. Shortly after the group’s arrival in the area, appellant Tully Tsosie went into one of the cabins, and thereafter a girl was heard to say,…