Dwinnell v. United States

186 F. 754, 108 C.C.A. 624, 1911 U.S. App. LEXIS 4166

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 6, 1911
• Docket: No. 1,865
• Status: Published

Opinions

ROSS, Circuit Judge.

The indictment in this case, the validity of which is strenuously contested by the plaintiffs in error, alleges, in substance, that at a certain stated time and place in the Northern district of California, to wit, in the county of Siskiyou in that state, the defendants to the indictment willfully and unlawfully conspired and agreed together and with various other persons to commit the crime of subornation of perjury, by instigating and procuring James Frederick French, Benjamin !■'. French, Frederick M. French, Samuel L. French, Clarence M. Prather, and Arthur WV Jacquette, to commit the crime of perjury in the state and district stated, by appearing before Clarence W. Leininger, the duly appointed, qualified, and acting register of the United States. Land Office at Redding, Cal., at a certain stated time, and “respectively take an oath to a sworn statement under the timber and stone lands acts of the United States, in which sworn statements each of the affiants so named should swear that he ‘did not apply to purchase the land described in said swofn statement on speculation but in good faith to appropriate it to his own exclusive use and benefit, and that he had not directly or indirectly made an agreement or contract, or in any way or manner, with any person or persons whomsoever, by which the title he might acquire from the government of the United States would inure in whole or' in part to the benefit of any person except himself/ which said sworn statements, after being so sworn to before the said Clarence W. Leininger, register as aforesaid, were to be filed in the said United States Land Office at Redding, Cal., by each of the persons so subscribing and swearing to the said sworn statement respectively, and which sworn statements, so to be sworn to and filed with the register of the United States Land Office as aforesaid; should be known by each of the said applicants to be false in a mate-terial matter therein to be sworn to, in this: That each of the persons at the time of so subscribing and swearing to his respective sworn statement had an agreement beforehand and an express Understanding that the title he was to secure and the land he was to apply for in his sworn statement was for the benefit of the said defendants; and the defendants, and each of them, then and there, at the time of so conspiring as aforesaid, well knew that the said sworn statements aforesaid, so to be filed, would be false in the said material matter just above stated.”

The indictment then alleges that the defendants thereto, to carry into effect the said unlawful conspiracy, procured a number of blank timber and stone land sworn statements under the rules prescribed in pursuance of the aforesaid act of Congress, and filled out such sworn statements for land of the United States, describing therein the specific tracts applied for by James Frederick French, Benjamin F. French, Frederick M. French, Samuel L- French, Clarence M. Prather, and Arthur W. Jacquette, respectively, and setting forth various other alleged acts of those parties and of the defendants, committed in pursuance of the alleged conspiracy, and further alleged that, notwithstanding the allegations contained in the sworn statements referred to, in truth “said applicant did not apply to purchase the land described in his application in good faith to appropriate it to his own exclusive use and benefit,” but in truth that each of the said applicants well knew that he “had directly made an agreement and contract with the said George W. Dwinnell that the .application should be made for the benefit of the said George W. Dwin-nell, and each of the applicants so swearing to his sworn statement1 had so made the contract as aforesaid, whereby the title to the ■ land should be transferred to the said George W. Dwinnell, and each of the defendants then and there well knew that each of the applicants so swearing to the sworn statements -was committing- the crime of perjury in so swearing.”

Section 1 of the Timber and Stone Act of June ”, 1878, c. 151, 20 Stat. 89 (U. S. Comp. Stat. 1901, p. 1515), provides:

“That surveyed public lands * * * valuable chiefly for Umber, but unit for cultivation, and which have not been offered at public safe according re law, may be sold * * * in quantities not exceeding TOO acres to any cue * * * at the minimum price of Ovo dollars and fifty cents per acre; and lands valuable chiefly for stone may be sold on similar terms as timber lands.”

Section 2 of the act, so far as it is applicable to the present case, is as follows:

“Sec. 2. That any person desiring to avail himself of the provisions of this act shall'file with the register of the proper district a written statement m duplicate, one of which is to be transmitted to the General hand Office,, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation and, valuable chiefly for its timber or si one; * * * that deponent has made no other «^plication under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not directly or indirectly made any agreement or contract in any way or manner with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself; which statement must be verified by the oath of the applicant before the register or the receiver of the Land Office within the district where the land is situated; and if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury and shall forfeit the money which he may have paid for said lands and ah right and title to the same, and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void.”

The third section of the act, so far as here applicable, is as follows:

“Sec. 3. That upon the filing of said statement * -3 * the register of the Land Office shall post a notice of such application, embracing a description of the land by legal subdivisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication at the expense of such applicant, in the newspaper published nearest the location of the premises, for a like period of time and after the expiration of said sixty days, if no adverse claim shall have been tiled, the person desiring to purchase shall furnish to the register of the Land Office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as hereinbefore required; secondly, that the land is of fhe character contemplated in this act * * •* and, upon payment to the proper officer of the purchase money of said land, together with the fees of the register and the receiver, as provided for in case of mining claims in the twelfth section of the act approved May tenth, W2, the applicant may be permit ted “to enter said tract, and on the transmission to the General Land Office of the papers and testimony in the case, a latent shall issue thereon.”

By act of August 4, 1892, c. 375, § 2, 27 Stat. 348 (U. S. Comp. St. 1901, p. 1517), the provisions of the above-mentioned act were extended to all the public-land states.

The indictment in question was based on section 5440 of the Revised Statutes (U. S. Comp. St. 1901, p. 367.6), which provides: , .

“If two or niore persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years.”

While the conspiracy denounced by the section quoted is not punishable until the commission of some overt act in pursuance of it, the offense consists of the conspiracy alone. United States v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698. And as a result, the validity of the indictment must be tested by the averments concerning the conspiracy, unaided by those in respect to overt acts committed thereunder.

Reading the allegations of the indictment in connection with the statute, and the rules and regulations adopted by the Rand -Department pursuant thereto, it is seen that it in effect charges that the defendants willfully and unlawfully entered into a conspiracy, at a time and place named, within the district where the indictment was found, to suborn certain named persons to go at a certain stated time before a named person, alleged to be the duly appointed, qualified, and acting register of the Rand Office at Redding, Cal., and respectively make application, under and in pursuance of the above-mentioned act of Congress, for some of the public land of the United States, by swearing to and filing with such land officer of the government the statement expressly required by the act of Congress and the rules and regulations of the Rand Department, setting forth, among other things, that the applicant does “not apply to purchase the land described in said sworn statement on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he had not directly or indirectly made any agreement or contract or in any way or manner with any person or persons Whomsoever, by which the title he might acquire from the government of the United States would inure in whole or in part to the benefit of any person except himself”; whereas, in truth and fact, the said statement of the said applicants would be willfully false, and intended so to be by each of them and by the said defendants in that each case of the said applicants should have a distinct agreement with the defendants that the land he should so apply for and secure from the government under its act of Congress, should be for the benefit of the defendants.

The subject of the alleged conspiracy was necessarily public land of \ the United States, for none other was embraced by the act of Congress under which the alleged contemplated proceedings were to be had, and in respect to which the register of the Rand Office is by statute authorized to administer oaths to applicants therefor. It is immaterial that the precise piece or pieces of land to be acquired should have been agreed upon by the alleged conspirators at the time of the formation of such conspiracy, nor, indeed, was it essential that the identity of the persons to be suborned or the particular time and place of such subornation be alleged. Williamson v. United States, 207 U. S. 425, 447, 448, 449, 28 Sup. Ct. 163, 52 L. Ed. 278; Van Gesner v. United States, 153 Fed. 46, 52, 53, 54, 82 C. C. A. 180.

We are of the opinion that the indictment was sufficient.

The crime charged therein was. however, as has been shown, the subornation of certain named persons to commit perjury in making certain sworn statements under the timber and stone act wherein they, in pursuance of the alleged conspiracy, should willfully swear falsely that they had made no agreement, directly or indirectly, by which the title they might acquire from the government should inure in whole or in part to the benefit of any person or persons other than the applicant; whereas, in fact each of said applicants at the time of so swearing would have an express agreement that the land he was so to apply for and the title thereto he should so secure was for the benefit of the said defendants. If the proof sustained that charge, the alleged conspiracy was thereby established, and (if the necessary overt act was committed) properly punishable. And there was evidence on the part of the government tending to sustain it, which may or may not have satisfied the jury. But to further sustain the charge so made the government was permitted on the trial of the case, over the objections and exceptions of the defendants, to put in evidence acts of the alleged perjurors committed long after the swearing to and filing of their statements under and in pursuance of the timber and stone act, as well as conversations between them and the defendant Dwinnell concerning those acts, to wit, testimony to the effect that, subsequent to the filing of the sworn statements of the applicants for the land in question, they, or at least some of them, agreed with the defendant Dwinnell, for a money consideration, to file a relinquishment of their applications for the land at such time as Dwinnell could manage to take it with scrip, which relinquishments were subsequently offered in evidence by the government and admitted over the objections and exceptions of the defendants.

Under the rulings of the Supreme Court in the Williamson Case, supra, and in the later case of United States v. Biggs, 211 U. S. 507, 29 Sup. Ct. 181, 53 L. Ed. 305, we think that testimony and evidence of conversations and acts had and done by the parties subsequent to the time when under the law the alleged conspiracy was consummated were clearly inadmissible. In the Williamson Case, in which a similar subornation of perjury was charged, the court held that the crime, if committed, was consummated when the false swearing was done in the applications filed for the land under the timber and stone act; that the prohibition of the statute applied only to the condition of things existing at that time: and that consequently affidavits subsequently filed in the Rand Department, even though willfully false, were not admissible to show motive at the time of the application. The decision in the Williamson Case was approved and followed in the subsequest one of Biggs, already cited.

However fraudulent the acts of the parties in respect to the relinquishment referred to, they do not constitute the crime alleged in the indictment.

The judgment is reversed, and the cause remanded to the court below for a new trial.