Barnard v. United States

162 F. 618, 89 C.C.A. 376, 1908 U.S. App. LEXIS 4476

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 1908
• Docket: No. 1,499
• Status: Published

Opinion

MORROW, Circuit Judge

(after stating the facts as above). It is objected that there is no allegation in the indictment that the United States commissioner before tvhom the defendant appeared and took the false oath mentioned in the indictment had authority to administer the particular oath upon which the charge of perjury is based. The indictment is founded upon section 5392 of the Revised Statutes (U. S. Comp. St. 1901, p. 3653), which provides as follows:

. “Every person who, having taken an oath before a competent tribunal, officer, or person in any case in which the law of the United States authorizes an oath to be administered, that be will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury.”

■ The authority of a United States commissioner to administer the oath and take the testimony of the defendant .is found in section 2294 of the Revised Statutes, as amended by Act March 4, 1901, c. 394, 33 Stat. 59 (U. S. Comp. St. Supp. 1907, p. 467), as follows:

“That hereafter all proofs, affidavits, and oaths of any kind whatsoever re-(inirert to be made by applicants and entrymen under the homestead, preemption, Umber culture, desert land, and timber and stone acts, may. in addition to those now authorized to take such affidavits, proofs, and oaths, be made before any TTiifecl States commissioner * * * in iho county, parish, or land district in which the lands are situated."’

The charge in the indictment is that the defendant “came in person before James S. Stewart, who was then and there the duty appointed, qualified, and acting United States commissioner for the district of Oregon, and who was then and there an officer, who was authorized by the lavs of the United States to administer an oath and to take the testimony of witnesses in the matter of the application of a claimant to make final proof upon a homestead entry of public lands of the United States.” The objection to this allegation is that it is the mere statement of the commissioner’s general authority to administer oaths in the matter of homestead proofs; that under Act March 3, .1879, c. 192, 20 Stat. 472 (U. S. Comp. St. 1901, p. 1392), there are certain preliminary proceedings required to be taken by the homestead claimant before the commissioner has authority to take proof or administer an oath in the final homestead entry; that the indictment does not set forth these preliminary proceedings; and that, therefore, it does not appear that the commissioner had authority to administer the oath in this particular case. The only other alternative, it is contended, was that the indictment should have been in the form prescribed by section 5396 of the Revised Statutes, which would have been sufficient had it alleged that the commissioner had authority to administer said oath; that is to say, the oath that was required to be taken in that case at that time.

In our opinion the indictment is not open to the objection urged against it. It is not only alleged that the commissioner was an officer who was authorized by the laws of the United States to administer an oath and take testimony of witnesses in the matter of the application of a claimant to make final proof upon a homestead entry, but it is alleged that the commissioner “was then and there engaged in taking and hearing testimony in the matter of the application of Charles A. Watson, late of said district of Oregon, to make final proof in support of his homestead entry,” and the particulars relating to the land, its location, and Watson’s homestead filing upon the land and the making of final proof in this particular case are set out in the indictment, from which it appears that the proceeding had reached that stage when the claimant was entitled to make final proof, and it is alleged “that it then and there became, and was, material that the said James S. Stewart, as such United States commissioner for the district of Oregon and the register and receiver of the United States Land Office at The Dalles in said district of Oregon, should know and be informed from and by the said testimony whether the said Charles A. Watson had settled and resided upon and improved or cultivated the said lands so described, as required by the homestead laws of the United States,” etc., and that the defendant made oath before the commissioner “of and concerning the truth of the matter contained in said testimony so subscribed by him,” and so, being sworn, “then and there, to prevent the said James S. Stewart, United States commissioner for the district of Oregon, and the said register and receiver of the United States Land Office at The Dalles, in said district of Oregon, from knowing the true facts and circumstances pertaining to the settlement and residence of the said Charles A. Watson upon, and his cultivation and improvement of the said lands * * * willfully, corruptly, and falsely, and contrary to his said oath did depose and swear as in said testimony set forth, of and concerning the material facts aforesaid, and did state and subscribe .material matters which he did not then believe to be true.” And it is further alleged that the defendant, in and by his said testimony and upon his oath aforesaid, in a case in which the law of the United States authorized an oath to be administered, did unlawfully and willfully, and contrary to said oath, state material matters which he did not believe to be true. From these allegations setting forth the general authority of the commissioner to administer an oath and take testimony in this class of cases and the statement of the proceedings before the commissioner in which he was engaged in taking, and hearing testimony the court will take judicial notice that the commissioner had competent authority to administer the oath to the defendant in this particular proceeding and in this particular case.

The objection that it is not sufficiently alleged in the indictment that defendant’s testimony was material is also without merit. The reference already made to the allegations of the indictment shows that it distinctly appears therefrom that defendant’s testimony was material .to the inquiry before the commissioner and the register and receiver of the land office as to whether Watson had complied with the law with respect to his homestead claim.

It is assigned as error that the court permitted the prosecution to prove certain- oral statements made by Watson tending to show that Watson did not reside on the homestead claimed by him during the time stated in his homestead proof. It is contended that the admission of these statements is contrary to the rule excluding hearsay evidence, except in certain circumstances not material to this case. The objection relates to the testimony of the witnesses Putnam and Shepard. These two witnesses were permitted to te'stify, over the objections of the defendant, as to conversations with Watson, the first at Portland, Or., in April, 1903, and the second at Greenville, Or., a place west of Portland, in 1901. When these conversations took place, Watson was not residing on the land claimed by him as a homestead. The indictment charged that the defendant had testified in 190-1 that Watson had established his residence on the land claimed as a homestead in 1898, and had since resided there continuously, except between July and October, 1904. The question of fact for the jury to ascertain was whether this sworn statement of the defendant was true or not, and evidence as to the residence of Watson during 1898 to 1904 was relevant to that inquiry. . It follows that evidence of the fact that from 1901 to 1903 he was absent from the land claimed by him as a homestead- was also material and relevant. The United States requires absolute good faith on the part of the settler in the occupation of public land for the purpose of acquiring title thereto under the homestead law. No mere pretense of establishing a residence upon the land or occasional visits to it will answer the requirement. The acts of occupation must be with the intention of actually residing upon the land, and hence it follows that under the law residence upon a homestead claimed is a combination of act and intent. With respect to the acts of Watson relating to his residence or lack of residence upon the claim evidence was admitted upon the trial and this evidence is not now a matter of controversy. The only question now is whether his declarations connected with such acts and relating to his lack of residence upon the land were also admissible in evidence. We think they were, as part of the res gesta. In Lund v. Tyngsborough, G3 Mass. 36, the court, in discussing this question, said:

“The main transaction is not necessarily confined to a particular point of time, but may extend over a longer or shorter period, according to the nature and character of the transaction. Thus, where a debtor leaves his house to avoid his creditors, which is an act of bankruptcy, and goes abroad, and continues abroad, the act of bankruptcy continues during the continuance abroad for this purpose. * * * Perhaps the most common and largest class of cases in which declarations are admissible is that in which the state of mind or motive with which any particular act is done is the subject of inquiry. Thus, where the question is as to the motive of a debtor in leaving his house and going and remaining abroad, so as to determine whether or not an act of bankruptcy is committed, his declarations when leaving his house and while remaining abroad, as to his motives for leaving his house and for remaining abroad, are admissible in evidence. Such declarations, accompanying the act. clearly belong to the res gestae. They are calculated to elucidate and explain the act and derive a degree of credit from the act.”

In Viles v. Waltham, 157 Mass. 512, 32 N. E. 901, 34 Am. St. Rep. 311, the question was as to declarations concerning the domicile of the plaintiff in the action. The court said:

“The change in his place of abode might be temporary or permanent. It might indicate a change of domicile or not, according to the circumstances attending it. Declarations of a person accompanying a change of his abiding place have always been held competent to explain the change as a part of the res gestae; but declarations in such cases are often admissible on a broader ground than as a part of the act of removing from one place to another. The intention of the person removing is competent to bo proved as an independent, fact, and anything which tends to show his intention in making the change may be introduced if it is free from objection in other particulars. * * * Declarations which indicate the state of mind of the declarant naturally have a legitimate tendency to show intention.”

In Insurance Co. v. Mosley, 8 Wall. 397, 404-405, 19 L. Ed. 437, the Supreme Court of the United States had this to say in respect to declarations of this character:

“Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and give them their proper effect. As independent, explanatory, or corroborative evidence, it is often indispensable to the true administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.”

To the same effect is Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 296, 12 Sup. Ct. 909, 36 L. Ed. 706.

We think that under this rule the declarations of Watson relating to his residence and in connection with facts relating to the same subject were competent as evidence tending to show that it was not his intention to reside on the land.

It is assigned as error that the court admitted the evidence of the witness Morgan, over the objection of defendant. The evidence of this witness tended to show that in September, 1904, he made proof of his residence upon a homestead upon public lands in the same section of the state where Watson made his claim, and that the defendant was a witness on behalf of Morgan, and that Morgan never resided upon the land. This evidence was offered and admitted as tending to show knowledge, design, and system on the part of defendant in furnishing evidence in support of a fraudulent scheme to obtain title to public lands, and the evidence was so limited by the court in its instructions to the jury. In Van Gesner v. U. S., 153 Fed. 46, 55, 82 C. C. A. 180, evidence of this character was admitted to illustrate or establish the intent or motive of the defendant with respect to the particular act in controversy, and in the instructions to the jury the evidence was so limited. The admission of the testimony and the instructions of the court to the jury with respect thereto were affirmed by this court. The same case was taken to the Supreme Court of the United States (Williamson v. U. S., 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278), by the defendant Williamson, where the admission of this testimony was affirmed by that court. The rule in that case is applicable to the facts in this case.

The defendant called James S. Stewart, the United States commissioner, before whom the homestead proof was taken in this case. He was asked if he knew the general reputation of the defendant for truth and veracity in the community where he lived. He answered that he did, and, upon further inquiry, testified that it had been good. On cross-examination the witness was shown the final proof of the defendant taken before the witness in support of his own homestead claim. The proof was identified by the witness. The United States Attorney-stated that he offered the evidence for the purpose of showing matter affecting the truth and veracity of the defendant; that, as a witness in his own behalf in a homestead proceeding, he swore to the fact that he had continuously resided on land other than the place where he actually resided. The evidence was admitted, over the objection of the defendant, and the witness was asked if he knew whether the defendant resided on the premises described in the homestead proof, but the witness testified that all he knew about it was what was stated in the homestead proof. If the admission of this evidence was error, it was clearly without prejudice, as it was not contradicted in any particular. So far as the evidence submitted to the jury was concerned, it stood as a truthful statement, and therefore without any prejudicial effect upon the jury as against the defendant.

Finding no prejudicial error in the record, the judgment of the court below is affirmed.