JOHNSON, District Judge.
Plaintiff in error was convicted in the court below of the crime of perjury. The indictment charged that plaintiff in error on the 21st day of June, 1917, filed in the land office at Ft. Sumner, N. M., an application to make homestead entry under the Act of February 19, 1909, on the S. E. % of section 9 and the 5. W. % of section 10, in township 3 south, range 23 east, N. M. P. M.; that he thereafter caused to be published notice of his intention to make three-year proof to establish his claim of the said land before the register and receiver of said land office; that on the 23d day of December, he appeared, was sworn by the register, and made certain false statements respecting his residence upon said land.
At the trial the prosecution introduced in evidence:
(1) The application of the defendant to make homestead entry on the lands described in the indictment, dated June 21, 1917, indorsed serial No. 016879, and application and affidavit receipt No. 1946994}
. (2) The notice of intention to make proof, dated October 29,1922, which read so far as material as follows: _
“I, Henry G. Dunlap, of Dunlap, New Mexico, who, on
Jan. 3, 1918, of
June 21,1919 made 017610
Original and Addl. Hds. No. 016879, for SW SW*4 Sec. 3, NE14 & SEi/4 Sec. 9; W% NW%, NE% NW%, and SW%, Section 10, Township 3 S, Range 23 E, N. M. P. Meridian, hereby give notice of jny intention to make three year Proof, to establish my claim to the land above described, before Register & Receiver, U. S. Land Office, at Fort Sumner, N. M. on the 23rd day of Dee. 1922.”
(3) Copy of the notice of the hearing posted and published by the register of the land office. This notice followed the recitals contained in the notice of intention to make proof.
(4) Final proof signed by the defendant, which was taken before the register of the land office on December 23,1922. This proof, among other matters not necessary to be set out, contained the following:
“U. S. Land Office, Fort Sumner, N._ M. 017610 Serial No. 016879 Additional Entry Serial No. -SiSTBS 1946994 017610 2043868 Receipt No. 2547335 * » •
“Q. 3. Are you the same person who made original homestead entry No. 016879 on Jany. 3, 1918, and additional homestead entry No. 017610 on June 21, 1919, 19 — , at the Fort Sumner U. S. Land Office, for SW^ Sec. 10, SEi/4 See. 9, SW%SW% Sec. 3, NE14 Sec. 9, Wy2NW%, NE%NW% Section 10, Township 3 S., Range 23 E., N. M. P. Meridian? * * * A. Yes, sir.
“Q. 7. State fully: (a) Whether the residence claimed in connection with this proof was made upon your original or your additional entry; (b) when you first established actual residence on the land. * * * A. (a) Original, (b) June 17, 1917.
“Q. 8. (a) Have you a habitable house on the land? (b) When was it built? * * * A. (a) Yes. (b) June, 1917.
“Q. 9. Considering each ‘residence yeari as beginning with the day and month on which residence was first established, state definitely the time, or times, during each residence year when you were actually residing on the land, and the time or times, when you [870]*870were absent from the - land-resided on the land A. I actually
“Q. 11. State the number of acres cultivated, bind of crop planted, and amount harvested, each year, and state to what extent you have used the land for grazing. A. * * * None of this land has been cultivated. I was allowed * ' * * reduction of cultivation to grazing. * * * I have grazed thirty head of cattle on this land each year, * * * for the years 1917, 1918, 1919, 1920, 1921, 1922, 19 — . * * *
“Q. 18. Have you ever made any other homestead entry? If so, describe the same. A. No, sir.
“Q. 19. Describe by legal subdivisions, or by number, bind of entry, and office where made, any entry or filing (not mineral) other than homestead made by you since August 30, 1890. A. I have not since August 30, 1890, made any entry or filing other than homestead entry.”
(5) The following affidavit signed and sworn to by the defendant before the register on the same day he submitted his final proof:
Serial No. 016879 . 017610
“In re Pinal Proof of Henry C. Dunlap.
“Henry C. Dunlap, after being duly sworn, on his oath states: That he is the same person who made homestead entry serial No. 016879, Orig. Hd., for SW^ See. 10, and SE14 See. 9, and Add. Hd., Serial No. 017610, for Wy2NW%, NE%NW% Sec. 10, SW%SW% See. 3, and NE% See. 9, all in T. 3 S., It. 23 E. That said original homestead was allowed to him, on June 21, 1917, and that he submitted proof on said original and additional homesteads, on December 23, 1922, before the register and receiver of the U. S. Land Office, at Pt. Sumner, N. M. That on account of financial conditions, and the droughty conditions of the country, and having been out of work about the time the five years expired, I was not financially able to submit final proof on the land, at the expiration of the five years, to wit, June 21, 1922.”
It is recited in the notice of intention to make final proof, and repeated in the notice of the hearing given by. the register, that the original application to make homestead entry was made on January 3,1918. This date is also used in Q. 3 of the final proof submitted on December 23,1922. The defendant by objections and exceptions raised in the court below the questions now to be considered.
He claims there was a fatal variance between the proof and the indictment, in that the indictment charged that the application for the homestead entry was made on June 21, 1917, while the evidence introduced showed that final proof was submitted on an application made January 3, 1918. It is clear beyond any reasonable doubt that the defendant made no homestead entry on January 3, 1918. It does not appear how the date January 3, 1918, happened to be used instead of the true date, June 21, 1917. It must have been the result of a mistake which was not observed until after the final proof had been taken. That it was observed is evident from the recitals contained in the affidavit made to excuse the delay in making final proof, wherein the defendant says:
“That said original homestead was allowed to him on June 21, 1917, and that he submitted proof on said original and additional homesteads on December 23, 1922, before the register and receiver of the U. S. Land Office, at Pt. Sumner, N. M. That on account of financial conditions, and the droughty conditions of the country, and having been out of work about the time the five years expired, I was not financially able to submit final proof on the land, at the expiration of the five years, to wit, June 21, 1922.”
The .three documents giving the date of the application of the homestead entry as January 3,1918, have the same serial number carried by the application dated June 21, 1917, viz. No. 016879. The final proof taken December 23, 1922, and the application to make homestead entry dated June 21, 1917 carry receipt No. 1946994. The lands described in the application dated June 21, 1917, are described with other lands in the three documents containing the date January 3, 1918.
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JOHNSON, District Judge.
Plaintiff in error was convicted in the court below of the crime of perjury. The indictment charged that plaintiff in error on the 21st day of June, 1917, filed in the land office at Ft. Sumner, N. M., an application to make homestead entry under the Act of February 19, 1909, on the S. E. % of section 9 and the 5. W. % of section 10, in township 3 south, range 23 east, N. M. P. M.; that he thereafter caused to be published notice of his intention to make three-year proof to establish his claim of the said land before the register and receiver of said land office; that on the 23d day of December, he appeared, was sworn by the register, and made certain false statements respecting his residence upon said land.
At the trial the prosecution introduced in evidence:
(1) The application of the defendant to make homestead entry on the lands described in the indictment, dated June 21, 1917, indorsed serial No. 016879, and application and affidavit receipt No. 1946994}
. (2) The notice of intention to make proof, dated October 29,1922, which read so far as material as follows: _
“I, Henry G. Dunlap, of Dunlap, New Mexico, who, on
Jan. 3, 1918, of
June 21,1919 made 017610
Original and Addl. Hds. No. 016879, for SW SW*4 Sec. 3, NE14 & SEi/4 Sec. 9; W% NW%, NE% NW%, and SW%, Section 10, Township 3 S, Range 23 E, N. M. P. Meridian, hereby give notice of jny intention to make three year Proof, to establish my claim to the land above described, before Register & Receiver, U. S. Land Office, at Fort Sumner, N. M. on the 23rd day of Dee. 1922.”
(3) Copy of the notice of the hearing posted and published by the register of the land office. This notice followed the recitals contained in the notice of intention to make proof.
(4) Final proof signed by the defendant, which was taken before the register of the land office on December 23,1922. This proof, among other matters not necessary to be set out, contained the following:
“U. S. Land Office, Fort Sumner, N._ M. 017610 Serial No. 016879 Additional Entry Serial No. -SiSTBS 1946994 017610 2043868 Receipt No. 2547335 * » •
“Q. 3. Are you the same person who made original homestead entry No. 016879 on Jany. 3, 1918, and additional homestead entry No. 017610 on June 21, 1919, 19 — , at the Fort Sumner U. S. Land Office, for SW^ Sec. 10, SEi/4 See. 9, SW%SW% Sec. 3, NE14 Sec. 9, Wy2NW%, NE%NW% Section 10, Township 3 S., Range 23 E., N. M. P. Meridian? * * * A. Yes, sir.
“Q. 7. State fully: (a) Whether the residence claimed in connection with this proof was made upon your original or your additional entry; (b) when you first established actual residence on the land. * * * A. (a) Original, (b) June 17, 1917.
“Q. 8. (a) Have you a habitable house on the land? (b) When was it built? * * * A. (a) Yes. (b) June, 1917.
“Q. 9. Considering each ‘residence yeari as beginning with the day and month on which residence was first established, state definitely the time, or times, during each residence year when you were actually residing on the land, and the time or times, when you [870]*870were absent from the - land-resided on the land A. I actually
“Q. 11. State the number of acres cultivated, bind of crop planted, and amount harvested, each year, and state to what extent you have used the land for grazing. A. * * * None of this land has been cultivated. I was allowed * ' * * reduction of cultivation to grazing. * * * I have grazed thirty head of cattle on this land each year, * * * for the years 1917, 1918, 1919, 1920, 1921, 1922, 19 — . * * *
“Q. 18. Have you ever made any other homestead entry? If so, describe the same. A. No, sir.
“Q. 19. Describe by legal subdivisions, or by number, bind of entry, and office where made, any entry or filing (not mineral) other than homestead made by you since August 30, 1890. A. I have not since August 30, 1890, made any entry or filing other than homestead entry.”
(5) The following affidavit signed and sworn to by the defendant before the register on the same day he submitted his final proof:
Serial No. 016879 . 017610
“In re Pinal Proof of Henry C. Dunlap.
“Henry C. Dunlap, after being duly sworn, on his oath states: That he is the same person who made homestead entry serial No. 016879, Orig. Hd., for SW^ See. 10, and SE14 See. 9, and Add. Hd., Serial No. 017610, for Wy2NW%, NE%NW% Sec. 10, SW%SW% See. 3, and NE% See. 9, all in T. 3 S., It. 23 E. That said original homestead was allowed to him, on June 21, 1917, and that he submitted proof on said original and additional homesteads, on December 23, 1922, before the register and receiver of the U. S. Land Office, at Pt. Sumner, N. M. That on account of financial conditions, and the droughty conditions of the country, and having been out of work about the time the five years expired, I was not financially able to submit final proof on the land, at the expiration of the five years, to wit, June 21, 1922.”
It is recited in the notice of intention to make final proof, and repeated in the notice of the hearing given by. the register, that the original application to make homestead entry was made on January 3,1918. This date is also used in Q. 3 of the final proof submitted on December 23,1922. The defendant by objections and exceptions raised in the court below the questions now to be considered.
He claims there was a fatal variance between the proof and the indictment, in that the indictment charged that the application for the homestead entry was made on June 21, 1917, while the evidence introduced showed that final proof was submitted on an application made January 3, 1918. It is clear beyond any reasonable doubt that the defendant made no homestead entry on January 3, 1918. It does not appear how the date January 3, 1918, happened to be used instead of the true date, June 21, 1917. It must have been the result of a mistake which was not observed until after the final proof had been taken. That it was observed is evident from the recitals contained in the affidavit made to excuse the delay in making final proof, wherein the defendant says:
“That said original homestead was allowed to him on June 21, 1917, and that he submitted proof on said original and additional homesteads on December 23, 1922, before the register and receiver of the U. S. Land Office, at Pt. Sumner, N. M. That on account of financial conditions, and the droughty conditions of the country, and having been out of work about the time the five years expired, I was not financially able to submit final proof on the land, at the expiration of the five years, to wit, June 21, 1922.”
The .three documents giving the date of the application of the homestead entry as January 3,1918, have the same serial number carried by the application dated June 21, 1917, viz. No. 016879. The final proof taken December 23, 1922, and the application to make homestead entry dated June 21, 1917 carry receipt No. 1946994. The lands described in the application dated June 21, 1917, are described with other lands in the three documents containing the date January 3, 1918. In the affidavit excusing delay the lands in the application dated June 21, 1917 are described with other lands, the serial number is given correctly, and the date of application to make homestead entry is given as June 21, 1917. The defendant was not taken by surprise by the introduction in evidence of the documents containing this erroneous date. These documents, though incorrect in respect to the date of the application, otherwise so conclusively identified the application of the defendant to make homestead entry, dated June 21,1917, that we are [871]*871of opinion the variance in the dates was immaterial, and properly disregarded by the trial court.
It is urged that the error as to the date of the application in the notice of intention and in the notice of the hearing rendered the whole proceeding void; that the register by reason of such error was without jurisdiction to administer the oath or to take the testimony of defendant at the hearing on the 23d day of December, 1922; and that the statements charged in the indictment, though false and wilfully made, did not constitute perjury under the law. Of course, this is true, if the proceedings were void; but, for the reasons already given, we are of opinion the register was not without authority to administer the oath and take the final proof submitted by the defendant.
The defendant makes the further contention that the register was without authority to take final proof on December 23, 1922, because more than five years had elapsed since June 21, 1917, the date of the application to make entry. In respect to final proof for the purpose of securing patent to' lands under the Homestead Act of February 19, 1909 (Comp. St. § 4563 et seq.), section 2291 as amended of the Revised Statutes of the United States (Comp. St. § 4532), provides :
“No certificate, however, shall be given or patent issued therefor until the expiration of three years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry * * * proves by himself and by two credible witnesses that he * * have a habitable .house upon the land and have actually resided upon and cultivated the same for the term of three years succeeding the time of filing the affidavit. # * * f)
Section 2450 of the Revised Statutes, as amended by the Act of September 20, 1922 (Comp. St. Ann. Supp. 1923, § 5106), provides that: . *
“The Commissioner of the General Land Office is authorized to decide upon principles of equity and justice, as recognized in courts of equity, and in accordance with regulations to be approved by the Secretary of the Interior, consistently with such principles, all eases of suspended entries of public lands and of suspended pre-emption land claims, and to adjudge in what eases patents shall issue upon the same.”
The department has made the following regulation:
“Proof [final proof on homestead entries] must be submitted within five years. Failure to submit proof within the proper period is ground for cancellation of the entry, unless good reasons for the delay appears. Satisfactory reasons being shown, final certificate may be issued and the case referred to the board of equitable adjudication for confirmation.” Paragraph 37, p. 18, Circular No. 541, General Land Office.
The affidavit excusing delay in making final proof should not be tested by technical rules of pleading. The authority or jurisdiction of the officers of the Land Department to hear and determine the matter did not depend upon the kind of reasons given in the affidavit excusing delay. Authority in the first instance to pass upon and determine the sufficiency of the excuses for delay is vested in the register and receiver of the local land office, and, if the reasons given are satisfactory to these officers, the cáse is referred to the board of equitable adjudication for confirmation. It is the province of the local land officers and of the board of equitable adjudication to determine what reasons are satisfactory. Hawley v. Dillir, 178 U. S. 476, 20 S. Ct. 986, 44 L. Ed. 1157.
We are of opinion the register and receiver had jurisdiction to take the final proof and to consider the affidavit excusing delay, and determine whether the entry should be canceled or a final certificate issued and the ease referred to the board of equitable adjudication for confirmation.
Judgment affirmed.