
    DUPUIS v. UNITED STATES.
    (Circuit Court of Appeals, Ninth Circuit.
    April 13, 1925.
    Rehearing Denied . May 11, 1925.)
    No. 4421.
    1. Criminal law <©=1134(2) — Claim of what could have been shown, had witnesses for defendant been procured at government’s expense, not considered.
    What it is contended defendant could have shown, had the trial court, under Rev. St. § S78 (Comp. St. § 1489), permitted him to procure witnesses at the expense of the government, cannot be considered.
    2. Witnesses <@=2(l) — Procuring witnesses for defendant at government expense in discretion of trial court.
    The matter of procuring at government expense witnesses for an indigent defendant in federal court is, under Rev. St. § 878 (Comp. St. § 1489), solely in the discretion of the trial court.
    3. Indians <@=34 — So long as tribal relations existed, immaterial that sale of liquor was to one entitled to no allotment under Indian Allotment Act.
    Relative to sale of liquor to an Indian, the national guardianship over Indians continues as long as the tribal relations exist, so that such relations existing, as to the woman to whom sale was made, it is immaterial that she Was not entitled to any allotment under the Indian Allotment Act:
    In Error to tbe District Court of tbe United States for tbe District of Oregon; Robert S. Bean, Judge.
    Jim Dupuis was convicted of selling liquor to an Indian, and brings error.
    Affirmed.
    Paul C. Dormitzer, of Portland, Or., for plaintiff in error.
    John S. Coke, U. S. Atty., and Millar E. MeGilehrist, Asst. U. S. Atty., both of Portland, Or.
    Before ROSS, HUNT, and RUDKIN, Circuit Judges.
   ROSS, Circuit Judge.

We see no merit in tbe argument for the plaintiff in error. What it is contended be could have shown, bad tbe trial court permitted him to procure witnesses at the expense of tbe government, cannot, of course, be considered, for no such witnesses were procured or appeared. That tbe matter of such procurement was within tbe discretion of tbe court is both statutory and settled by tbe courts. Rev. Stat. § 878 (Comp. St. § 1489); Goldsby v. U. S., 160 U. S. 70, 16 S. Ct. 216, 40 L. Ed. 343; O’Hara v. U. S., 129 F. 551, 64 C. C. A. 81.

Tbe claim that tbe woman to whom tbe liquor was alleged and shown to have been sold by tbe plaintiff in error was not an Indian, because, according to tbe evidence, not entitled to any allotment under tbe Indian Allotment Act, is unsound, for the reason that tbe national guardianship over tbe Indians continues (in the absence of an act of Congress to tbe contrary) as long as tbe tribal relations exist. In tbe present case there was testimony to show that such relations did exist. And there was also testimony tending to show tbe alleged sales of tbe alleged liquor by tbe plaintiff in error to tbe Indian woman on tbe occasions and at tbe times and place alleged in tbe indictment.

Tbe judgment is affirmed.  