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Back on death row — again

Madera County Historical Society

Alvin McSwain is shown here in 1951. He was put on leave from the Navy to testify in the second murder trial of Rayna Carmen.


When Rayna Tom Carmen was brought into the Madera County Courthouse on Oct. 1, 1951, to stand trial for the second time for the murder of Wilbur McSwain, he saw someone he was not expecting to see. There dressed in his U. S. Navy uniform was Alvin McSwain, whom Carmen had tried to kill, along with his brother Wilbur, on that tragic April night in 1950.

Alvin had been given leave to testify in the second trial of his brother’s killer — a trial that had been ordered by the California State Supreme Court’s reversal of the first trial on a technicality.

The testimony in the second trial wasn’t much different from that of the first trial. After a quarrel with the McSwains, Carmen took a rifle to their home and waited for them. When they drove up, he let the car stop, walked up to it, and fired a shot across the front seat, striking Wilbur. He then walked toward the back of the car and fired three shots into the back seat, inflicting three wounds on Alvin. Wilbur died from his wound several hours later.

The jury in 1950 found him guilty, and the judge gave him the death sentence. It was overturned. Now on Oct. 8, 1951, another jury found Carmen guilty of the murder of Wilbur McSwain and once again the judge sentenced him to die in the Gas Chamber. The condemned man was taken back to San Quentin to await his execution.

In the meantime, an appeal, which was mandatory in capital convictions, went forward.

Once again the appeals court examined the evidence and upheld the lower court verdict. Carmen would die, or so a majority of judges ruled. It just so happened, however, that someone named Robert Peckham, an assistant United States attorney, appeared before the tribunal to tell a strange story about someone named “Maggie Jim.”

Maggie Jim was a Mono Indian who lived in the mountains of what became Madera County all of her life. She was born in 1843, which meant she was living a tribal life long before the Europeans invaded her homeland. She was eight years old when Jim Savage led the Mariposa Battalion in a war against the Indians.

On Nov. 26, 1920, the United States issued an allotment of land to Maggie Jim, “an Indian.” That land was part of the Sierra National Forest and was still held in trust for Maggie Jim and her heirs in 1951. Peckham described this land as “Indian land.”

The 1930 census shows that Maggie Jim was the aunt of Dan McSwain who was the father of Wilbur and Alvin McSwain. Maggie died in 1937 at the age of 94, and her allotment transferred to Dan McSwain. By 1940, McSwain, his wife, Ella, and sons Wilbur and Alvin were living on the “Maggie Jim Allotment,” which had been designated “Indian land.”

Peckham pointed out to the appeals court that “there was reason to believe that the crime was committed in ‘Indian country’ as that term is defined by the federal statutes, that the defendant is an Indian and, therefore, that the United States may have exclusive jurisdiction over the matter.”

The appeals court disagreed. The majority decreed that state courts had equal jurisdiction with federal courts in the matter, so the sentence stood, and Mason Bailey, Carmen’s attorney, went to work.

The attorney decided to shift gears completely. He would forget about fighting with the California courts. He would go to the federal courts for a new trial. Bailey’s mantra to anyone who would listen was this: neither Madera County nor the State of California had any jurisdiction over the murderer of Wilbur McSwain. Rayna Tom Carmen was an Indian; Wilbur and Alvin McSwain were Indians, and the shooting took place on the Maggie Jim allotment, which was “Indian country.”

On April 4, 1952, Bailey announced he was filing a petition with the California State Supreme Court to release jurisdiction of the case. In his petition, Bailey submitted the following evidence: 1) a photostatic copy of the Indian allotment, which gave the land to Maggie Jim; 2) a declaration of the allotment transfer at Maggie Jim’s death in 1937 to her grand-nephew Dan McSwain; 3) a copy of the president’s order extending the allotment; and 4) a 1933 Department of the Interior document listing Rayna Carmen as an Indian.

This latest twist had come as a complete surprise to Bailey. “At no time during the first and second trials was the question of jurisdiction raised,” Bailey insisted. “I didn’t know of the matter, and I am sure the prosecutor didn’t know about it either.”

So here Rayna Carmen was, two years after his first trial, back on Death Row. Everybody seemed to have forgotten that he was an Indian — would it make any difference?

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To be concluded next time…

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