
    THE NAVAJO TRIBE OF INDIANS Plaintiff-Appellee vs. PAUL McCABE Defendant-Appellant
    Decided October 6, 1971
    Merwin Lynch, Deputy Trial Prosecutor, Office of the Prosecutor, Window Rock, Arizona, for Plaintiff-Appellee
    Tom Tso, Navajo Legal Aid and Defender Services, Window Rock, Arizona, for Defendant-Appellant
    Before KIRK, Chief Justice, BENALLY and WILSON, Associate Justices
   KIRK, Chief Justice

This matter came on for hearing de novo before the Court of Appeals on the 6th day of October, 1971.

The defendant was convicted of violating Section 246, Title 14 of the Navajo Tribal Code (being in actual physical control of a motor vehicle within the Navajo Indian Reservation while under the influence of intoxicating liquor) on February 1, 1971, Case No. WR-TO-131-71 in the Trial Court at Window Rock, Arizona. /The defendant was sentenced to pay a fine of one hundred fifty and No/100 ($150,00) dollars or to sixty (60) days in jail. The defendant appealed to the Court of Appeals and the sentence was stayed. The appeal was granted February 3, 1971.

Section 453, Title 7, Navajo Tribal Code, provides that when an appeal is granted, the proceedings on appeal shall consist, not of a retrial, but a new trial before the Chief Justice and two judges of the Trial Courts of the Navajo Nation, other than the judge who heard the case in the trial court.

Mr. Merwin Lynch presented he prosecution's case before the Court of Appeals and presented Officer Allen Thomas, Navajo Patrolman, as the witness against the defendant.

The Officer testified that the observed a vehicle weaving along the highway approximately in the Cross Canyon area and that it was obstructing traffic and that at the time of the defendant's apprehension he smelled of a strong odor of liquor and when he was requested to step down from the vehicle he could not stand alone or without supporting himself by hanging on to the motor vehicle. The Officer, upon determining it was unsafe for the defendant to operate the vehicle, Immediately placed the defendant in the police car and transported him to the jail at Window Rock, Arizona and the vehicle was later brought in to the police compound.

Since the question was raised, it is the opinion of this Court that the "Miranda" warning was unnecessary in this particular case for the reason that the facts were self-evident and that the defendant has already incriminated himself by his actions rather than by his words.

The defendant Paul McCabe did not take the witness stand in his own behalf but was represented by Mr. Tom Tso, Tribal Court Advocate from the Navajo Legal Aid Service.

The Court of Appeals having heard the evidence finds that the defendant did violate Section 246, Title 14 Navajo Tribal Code, by driving a motor vehicle within the boundaries of the Navajo Reservation while under the influence of intoxicating liquor. The Court further finds that the penalty for this violation should be in accordance with Section 245(a), Title 14 of the Navajo Tribal Code, wherein the specific penalty for driving while under the influence of intoxicating beverage is set forth as a sentence to labor not to exceed three (3) months.

It is, therefore, the order of this Court that the defendant is hereby sentenced to serve sixty (60) days in jail commencing immediately. The sentence is, however, suspended and the defendant is allowed his freedom on probation upon his signing a pledge of good conduct during the period of the sentence,

BENALLY, Associate Justice, and WILSON, Associate Justice, concur.  