GILBERT, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
It is contended that the verdict of acquittal on the first and third counts necessarily involves acquittal on the second count, that the offenses as charged in the three counts overlap each other so that the evidence which would sustain one count would sustain all, and that the court erred in denying the motion which the plaintiff in error made for arrest of judgment on that ground. But it must be apparent that the plaintiff in error might be guilty of erecting an unlawful inclosure of public lands as charged in the first count, and yet might not be guilty of maintaining it, and it is equally clear that he might not be guilty of erecting an inclosure and yet he chargeable with maintaining and controlling it. It is also conceivable that one who maintains and controls an inclosure of public lands might not necessarily be guilty of obstructing and preventing free passage and transit over and through the public lands by means of fencing and inclosing the same, since the fence and inclosure might have been made by another. The indictment was returned on December 30, 1906. The evidence was that all of the fences had been erected prior to the fall of 1903, so that prosecution on the first count was barred by the statute of limitations; and it also showed that some of the fences were not made by the plaintiff in error, but were built by others before they came into his control.
A more difficult question is presented by the assignment of error which is addressed to the language and conduct of the district attorney concerning the contempt which was alleged to have been committed during the trial by W. C. Carroll, a brother of the plaintiff in error. Undoubtedly the proper course of the district attorney would have been to have asked that-the jury be sent out of the courtroom before directing the attention of the court to the alleged contempt. Upon a careful consideration of the record, however, we are not convinced that the language and conduct of the district attorney was, under the circumstances, such prejudicial error as to justify a reversal of the judgment, for the court instructed the jury that they should allow nothing that was said or done in that connection to influence their minds in the least, either one way or the other, and that they should lay the transaction entirely out of their minds, and again, in charging the jury on that subject, said:
[430]*430“Gentlemen of tile Jury: Before proceeding further with this case, I will admonish you again,, as I did last evening, not to let this other proceeding have anything to do with your consideration of this case. Put it out of your, minds entirely, and decide the ease absolutely upon the evidence adduced before you, and the law as it will be given you by the court.”
With some rare exceptions arising from extreme cases, it is'generally held that prejudice created by unwarranted statements of counsel in the presence of the jury is sufficiently cured by an admonition of the court to the jury, such as was given in the present case. Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. 708; Weeks v. Scharer, 64 C. C. A. 11, 129 Fed. 333; Chesebrough v. Conover, 140 N. Y. 382, 35 N. E. 633; Egan v. Murray, 80 Iowa, 180, 45 N. W. 563; State v. Hack, 118 Mo. 92, 23 S. W. 1089; Commonwealth v. Poisson, 157 Mass. 510, 32 N. E. 906; State v. Butler, 85 Me. 225, 27 Atl. 142; State v. Braswell, 82 N. C. 693; Edwards v. State, 90 Ga. 143, 15 S. E. 744; Strowger v. Sample, 44 Kan. 298, 24 Pac. 425; Chicago City Ry. Co. v. Pelletier, 134 Ill. 120, 24 N. E. 770 ; Johnson v. Brown, 130 Ind. 543, 28 N. E. 698. In consideration of the fact that the verdict was clearly justified by the evidence, we are of the opinion that the improper conduct of the district attorney, in view of the repeated injunction of the court to the jury to wholly disregard it, does not demand a reversal of the judgment, although it might have that effect in a case in which the evidence was less clear.
But the principal objection of the plaintiff in error in this connection is directed to the language of the court, which it is claimed was prejudicial in the highest degree. We do not discover that the court said, in the presence of the jury, anything not justified under the circumstances, nor do we see how the court could well have dealt with the matter so brought before it in any manner other than as shown in the record. In addition to this, the record discloses that no exception whatever was taken to any of the remarks so made by the court. In this connection it is proper to advert again to the fact that the jury were repeatedly instructed to disregard everything done or said in the colloquy relating to the contempt proceedings, and to decide the case absolutely upon the evidence adduced before them and the law as given by the court. Such an instruction was sufficient to cure error such as is charged here, if error it were. Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224; Lovejoy v. United States, 128 U. S. 171, 9 Sup. Ct. 57, 32 L. Ed. 389; McKnight v. United States, 130 Fed. 659, 670, 65 C. C. A. 37.
It is contended that the court erred in ruling that a certain deed of the Northern Pacific Railway Company to the plaintiff in error was not admissible in evidence for the purpose of showing color of title. The deed was for unsurveyed land “which, when surveyed, will be described as follows: The northeast quarter of the northwest quarter, and the south half of the northwest quarter, of section 25, in township 4 north, of range 7 west of the Montana principal meridian.” The coúrt ruled that the deed was admissible for the purpose of showing good faith, but 'for no other purpose. We find no error in that ruling. Until public land is officially surveyed, it cannot be described or conveyed b}' reference thereto as sections or subdivisions of sections. In [431]*431Magwire v. Tyler, 8 Wall. (U. S.) 650, 19 L. Ed. 320, it was held that conveyance of such lands “creates no right of private property in any particular tract of land which can be maintained in a court of justice without an antecedent survey and location.” And in Robinson v. Forrest, 29 Cal. 217, it was well said:
“Even after a principal meridian and base line have been surveyed, neither the sections nor their subdivisions can be said to have any existence until the township is subdivided into sections and quarter sections by an approved survey. The lines are not ascertained by the survey, but they are created. * * * There is in fact no such land as that described in the petition until it has been located within the congressional township by an actual survey and establishment of the lines under the authority of the United ■States.’’
See, also, Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566; United States v. Birdseye, 137 Fed. 516, 70 C. C. A. 100; United States v. Montana L. & M. Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. 604. The court in instructing the jury gave to the plaintiff in error all the substantial benefit that would have accrued to him had the deed been ruled admissible in evidence for the purpose of showing color of title.
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GILBERT, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
It is contended that the verdict of acquittal on the first and third counts necessarily involves acquittal on the second count, that the offenses as charged in the three counts overlap each other so that the evidence which would sustain one count would sustain all, and that the court erred in denying the motion which the plaintiff in error made for arrest of judgment on that ground. But it must be apparent that the plaintiff in error might be guilty of erecting an unlawful inclosure of public lands as charged in the first count, and yet might not be guilty of maintaining it, and it is equally clear that he might not be guilty of erecting an inclosure and yet he chargeable with maintaining and controlling it. It is also conceivable that one who maintains and controls an inclosure of public lands might not necessarily be guilty of obstructing and preventing free passage and transit over and through the public lands by means of fencing and inclosing the same, since the fence and inclosure might have been made by another. The indictment was returned on December 30, 1906. The evidence was that all of the fences had been erected prior to the fall of 1903, so that prosecution on the first count was barred by the statute of limitations; and it also showed that some of the fences were not made by the plaintiff in error, but were built by others before they came into his control.
A more difficult question is presented by the assignment of error which is addressed to the language and conduct of the district attorney concerning the contempt which was alleged to have been committed during the trial by W. C. Carroll, a brother of the plaintiff in error. Undoubtedly the proper course of the district attorney would have been to have asked that-the jury be sent out of the courtroom before directing the attention of the court to the alleged contempt. Upon a careful consideration of the record, however, we are not convinced that the language and conduct of the district attorney was, under the circumstances, such prejudicial error as to justify a reversal of the judgment, for the court instructed the jury that they should allow nothing that was said or done in that connection to influence their minds in the least, either one way or the other, and that they should lay the transaction entirely out of their minds, and again, in charging the jury on that subject, said:
[430]*430“Gentlemen of tile Jury: Before proceeding further with this case, I will admonish you again,, as I did last evening, not to let this other proceeding have anything to do with your consideration of this case. Put it out of your, minds entirely, and decide the ease absolutely upon the evidence adduced before you, and the law as it will be given you by the court.”
With some rare exceptions arising from extreme cases, it is'generally held that prejudice created by unwarranted statements of counsel in the presence of the jury is sufficiently cured by an admonition of the court to the jury, such as was given in the present case. Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. 708; Weeks v. Scharer, 64 C. C. A. 11, 129 Fed. 333; Chesebrough v. Conover, 140 N. Y. 382, 35 N. E. 633; Egan v. Murray, 80 Iowa, 180, 45 N. W. 563; State v. Hack, 118 Mo. 92, 23 S. W. 1089; Commonwealth v. Poisson, 157 Mass. 510, 32 N. E. 906; State v. Butler, 85 Me. 225, 27 Atl. 142; State v. Braswell, 82 N. C. 693; Edwards v. State, 90 Ga. 143, 15 S. E. 744; Strowger v. Sample, 44 Kan. 298, 24 Pac. 425; Chicago City Ry. Co. v. Pelletier, 134 Ill. 120, 24 N. E. 770 ; Johnson v. Brown, 130 Ind. 543, 28 N. E. 698. In consideration of the fact that the verdict was clearly justified by the evidence, we are of the opinion that the improper conduct of the district attorney, in view of the repeated injunction of the court to the jury to wholly disregard it, does not demand a reversal of the judgment, although it might have that effect in a case in which the evidence was less clear.
But the principal objection of the plaintiff in error in this connection is directed to the language of the court, which it is claimed was prejudicial in the highest degree. We do not discover that the court said, in the presence of the jury, anything not justified under the circumstances, nor do we see how the court could well have dealt with the matter so brought before it in any manner other than as shown in the record. In addition to this, the record discloses that no exception whatever was taken to any of the remarks so made by the court. In this connection it is proper to advert again to the fact that the jury were repeatedly instructed to disregard everything done or said in the colloquy relating to the contempt proceedings, and to decide the case absolutely upon the evidence adduced before them and the law as given by the court. Such an instruction was sufficient to cure error such as is charged here, if error it were. Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224; Lovejoy v. United States, 128 U. S. 171, 9 Sup. Ct. 57, 32 L. Ed. 389; McKnight v. United States, 130 Fed. 659, 670, 65 C. C. A. 37.
It is contended that the court erred in ruling that a certain deed of the Northern Pacific Railway Company to the plaintiff in error was not admissible in evidence for the purpose of showing color of title. The deed was for unsurveyed land “which, when surveyed, will be described as follows: The northeast quarter of the northwest quarter, and the south half of the northwest quarter, of section 25, in township 4 north, of range 7 west of the Montana principal meridian.” The coúrt ruled that the deed was admissible for the purpose of showing good faith, but 'for no other purpose. We find no error in that ruling. Until public land is officially surveyed, it cannot be described or conveyed b}' reference thereto as sections or subdivisions of sections. In [431]*431Magwire v. Tyler, 8 Wall. (U. S.) 650, 19 L. Ed. 320, it was held that conveyance of such lands “creates no right of private property in any particular tract of land which can be maintained in a court of justice without an antecedent survey and location.” And in Robinson v. Forrest, 29 Cal. 217, it was well said:
“Even after a principal meridian and base line have been surveyed, neither the sections nor their subdivisions can be said to have any existence until the township is subdivided into sections and quarter sections by an approved survey. The lines are not ascertained by the survey, but they are created. * * * There is in fact no such land as that described in the petition until it has been located within the congressional township by an actual survey and establishment of the lines under the authority of the United ■States.’’
See, also, Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566; United States v. Birdseye, 137 Fed. 516, 70 C. C. A. 100; United States v. Montana L. & M. Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. 604. The court in instructing the jury gave to the plaintiff in error all the substantial benefit that would have accrued to him had the deed been ruled admissible in evidence for the purpose of showing color of title. The instruction was that, if the plaintiff in error honestly believed that he had a right to inclose such land by reason of having previously procured the deed, the jury might consider that fact as tending to show the intent with which he inclosed that particular tract of land. “Because,” said the court, “without the intent to inclose public lands, knowing them to be such, there can be no offense.”
Error is assigned to the following portion of the charge to the jury:
“Tour authority in judging of the effect of evidence Is not arbitrary, but should be exercised with legal discretion and in subordination to the rules of evidence. Ton are not bound to find in conformity with the declarations of any number of witnesses which do not produce conviction in your minds, or against a presumption of other evidence satisfying your minds.”
It is urged against this instruction that apparently it was aimed at the witnesses of plaintiff in error and intended to discredit them, since there were 14 of them, whereas there were but 4 for the prosecution; and that it was erroneous for the further reason that it conveyed to the jury the idea that the plaintiff in error must make out his defense so clearly as to produce conviction in their minds. We cannot see that the instruction is open to either objection. It clearly is the law that the jury were not bound to find in conformity with the declarations of any number of witnesses which did not produce conviction in their minds. The portion of the charge so excepted to should be read in connection with the general charge on that branch of the case, in which the court defined the term “reasonable doubt,” and instructed the jury that all the presumptions of law, aside from the effect of ■evidence, are in favor of innocence, and that every person is presumed to be innocent until proved guilty. Said the court:
“If, therefore, upon such proof as here adduced, considering it in its fullness and entirety, there remains in your minds a reasonable doubt as to the .guilt of the accused, he is entitled to the benefit of it by an acquittal; that is, the evidence must establish guilt under the charge to a reasonable and moral certainty, a certainty that convinces your reason and judgment, acting under your duties and obligations as jurors.”
[432]*432It is plain that, when the whole charge is considered, the jury could not have been misled by anything that was said in the particular portion thereof that was excepted to. Agnew v. United States, 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624.
We find no error. The judgment is affirmed.