Mahlon Pitney

“ There was a large population of Indians in the Indian Territory, but a much larger population of whites. Under the provisions of the Curtis act (30 Stat. at L. 495, chap. 517) , towns had been organized and were growing rapidly, and much of the land had been allotted. Congress no doubt had in mind the existing agreements with the Five Civilized Tribes, some of them recently made, by which, in one form or another, the United States had agreed to maintain laws against the introduction, sale, etc., of liquors within the territory of the tribes (225 U.S. 684-686) . ”

“ For the sake of simplicity we assume the facts to be so, without deciding that we may take judicial notice of them. But we think the third clause, 'other parts and portions of that part of Oklahoma which lies within the Indian country,' is sufficient to sustain the indictment in this respect. ”

“ If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.' And if this be true with respect to mere dicta, it is no less true of concessions made for the purpose of narrowing the range of discussion, or of testing, by assumed obstacles, the validity of the reasoning by which the court reaches its conclusions upon the point submitted for decision. ”

“ Stat. (Comp. Stat. 1913, § 1691) , cannot be accepted, since we have before us only the strict record, and therefore cannot say that the trial proceeded upon a different theory from that indicated by the indictment, or that its averments were supplemented by the proofs.
The offense against the laws of the United States that was the object of the conspiracy must have had reference to one or the other of two distinct prohibitions. The one is that arising from the act of July 23, 1892 (27 Stat. at L. 260, chap. 234) , amending § 2139, Rev. ”