WHITSON, District Judge
(after stating the facts as above). While the plaintiff in error has made numerous assignments, they either directly present or incidentally involve two principal propositions : First. The sufficiency of the indictment. Second. The nature and character of the contract or agreement which is inhibited by the statute, and whether plaintiff in error was brought within its provisions.
First, then, as to the indictment: The argument is that tlie pleader has omitted to charge that the acts complained of were willfully done. This is based upon the assumption, rightly made, that it must so appear by appropriate averment. Assuming for the present discussion [706]*706without holding that the words “unlawfully, willfully, and corruptly” first appearing in the indictment cannot relate to the subsequent allegations in relation to the nature of the oaths taken for want of explicit reference, it does appear that the acts were knowingly done, for it is alleged:
“When, in truth and in fact, as each of the said persons would then well know, and as they, the said Henry IV. Miller, Frank E. Ivincart. Martin 6. I-Ioge, and Charles Niekell, would then well, know, such persons would be applying to purchase such lands on speculation, and not in good faith to appropriate such lands to their own exclusive use and benefit, respectively, and would have made agreements and contracts with other persons by which the titles which they should acquire from the said United States in such lands would inure to the benefit of persons except themselves.”
We think the distinction which counsel makes is a technical refinement which cannot prevail under the liberal provisions of section 1025 of the Revised Statutes (U. S. Comp. St. 1901, p. 720). If the defendants knew that these affidavits would be false, and knew that the entrymen would have made contracts for the conveyance of the lands to be acquired by them, and having this knowledge nevertheless procured the mdking of them, there can be but one conclusion, and that is that they willfully, which is but another name for intentionally, entered into the conspiracy charged. While matters of substance are as essential now as before the passage of the statute, and of necessity must always remain so, we take it that its enactment was intended to have substantially the same effect as those of many of the states, which provide that an indictment which will enable a person of common understanding to know what is intended is sufficient.
In Van Gesner v. United States, 153 Fed. 54, 82 C. C. A. 188, it was observed by this court:
“IVlien the facts alleged necessarily import such willfulness, the failure to use the word itself is not fatal. Such failure, under such circumstances, would not be fatal even at common law.”
The indictment in this case falls within the rule there discussed.
The second point presents a question of more difficulty. Section 2 of the act of June 3, 1878 (20 Stat. 89, c. 151 [U. S. Comp. St. 1901, p. 1545]), requires the entrvman at the time of making his application to make oath that he has not made any agreement or contract in any way or manner, directly or indirectly, with any person or persons, by which the title shall inure to the benefit of any person except himself. That it was intended to meet the evasions which would be resorted to from time to time is quite manifest. Schemes, devices, and' subterfuges which ingenuity could invent, and of which this case furnishes a striking example, were in view equally with formal contracts. We are precluded from holding otherwise by the comprehensive language of the statute; and to sustain the contention of plaintiff in error in that regard would be equivalent to saying that its purpose can be entirely defeated by secret understandings and ingenious circumventions. Boren v. United States, 144 Fed. 801, 804, 75 C. C. A. 531. With this construction in mind, the particular scheme which was conceived in this case will be examined. The certificates, [707]*707so called, were, of course, devices. Miller objected to giving the name of the responsible head of his company to one of the prospective entrymen, but, on being pressed, he did give a name, concerning which he testified as follows:
“T gave him the name oí J. D. Wilson, of Minneapolis, Minn., as the head man. That was the first name that happened to come to my mind. lie had nothing to do with the company. I do not know that there was any such individual.”
Again he testified:
“X represented no company at that time. The company was only on paper. It was a name assumed for the purpose of carrying out our scheme.”
The case must therefore rest upon the undisputed fact that there was no such company as the Emmitsburg of New Zealand. That company was fictitious, and Wilson as its manager had no existence. There was, then, no contract or agreement with any person to convey, or whereby the land might inure in whole or in part to the benefit of such company. It was not the purpose to supply money with which to make the entries nor to acquire title. The scheme was to work the entrymen out of the location fees; to defraud them. Here the matter was to end, and did end. But the entrymen and the defendants, other than the plaintiff in error, and he, giving clue effect to the ver-', diet of the jury, thought there was a contract to convey, and therefore it is that in this regard the affidavits contained averments which the entrymen did not believe to be true. This was perjury. Section 5392, Rev. St. (U. S. Comp. St. 1901, p. 3653). Procuring the making of such affidavits was subornation of perjury. Section 5393, Rev. St. (U. S. Comp. St. 1901, p. 3654). The case was submitted to the jury upon the theory that it might find from the evidence agreements as charged in the indictment by which the lands to be acquired were to be conveyed, or might inure to the benefit of some person other than the entrymen. Miller, Kincart, and the plaintiff in error intended that the false affidavits should be made, and the plaintiff in error supposed that there were agreements in fact as well as in form that the lauds were to be entered and conveyed to Miller’s company. In addition to the certificates which were signed, there was evidence to establish that, at least as to some of the entrymen, there were oral agreements made with Miller to convey to this company; but, bearing-in mind that the entrymen intended to defraud the government oí these lands, and that the plaintiff in error intended to, and did give his aid to what he supposed was a deliberate attempt to do so, the case must turn upon whether there were agreements or such an arrangement as would result iu the lands inuring to the benefit of some person other than the persons who were making entries of them. If these agreements had been made by Miller concerning lands which might properly he the subject of contract, he could have been held personally responsible. They would have been enforceable as against him under the rule that one who holds himself out as the agent of a principal who has no existence is personally liable. Patrick v. Bowman, 149 U. S. 124, 13 Sup. Ct. 866, 37 L. Ed. 790; Paine v. Loeb, 96 Fed. 167, 37 C. C. A. 434; Second Kent’s Commentaries, 630; [708]*708Booth v. Wonderly, 36 N. J. Law, 250; Story on Agency, § 230, 280, 281.
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WHITSON, District Judge
(after stating the facts as above). While the plaintiff in error has made numerous assignments, they either directly present or incidentally involve two principal propositions : First. The sufficiency of the indictment. Second. The nature and character of the contract or agreement which is inhibited by the statute, and whether plaintiff in error was brought within its provisions.
First, then, as to the indictment: The argument is that tlie pleader has omitted to charge that the acts complained of were willfully done. This is based upon the assumption, rightly made, that it must so appear by appropriate averment. Assuming for the present discussion [706]*706without holding that the words “unlawfully, willfully, and corruptly” first appearing in the indictment cannot relate to the subsequent allegations in relation to the nature of the oaths taken for want of explicit reference, it does appear that the acts were knowingly done, for it is alleged:
“When, in truth and in fact, as each of the said persons would then well know, and as they, the said Henry IV. Miller, Frank E. Ivincart. Martin 6. I-Ioge, and Charles Niekell, would then well, know, such persons would be applying to purchase such lands on speculation, and not in good faith to appropriate such lands to their own exclusive use and benefit, respectively, and would have made agreements and contracts with other persons by which the titles which they should acquire from the said United States in such lands would inure to the benefit of persons except themselves.”
We think the distinction which counsel makes is a technical refinement which cannot prevail under the liberal provisions of section 1025 of the Revised Statutes (U. S. Comp. St. 1901, p. 720). If the defendants knew that these affidavits would be false, and knew that the entrymen would have made contracts for the conveyance of the lands to be acquired by them, and having this knowledge nevertheless procured the mdking of them, there can be but one conclusion, and that is that they willfully, which is but another name for intentionally, entered into the conspiracy charged. While matters of substance are as essential now as before the passage of the statute, and of necessity must always remain so, we take it that its enactment was intended to have substantially the same effect as those of many of the states, which provide that an indictment which will enable a person of common understanding to know what is intended is sufficient.
In Van Gesner v. United States, 153 Fed. 54, 82 C. C. A. 188, it was observed by this court:
“IVlien the facts alleged necessarily import such willfulness, the failure to use the word itself is not fatal. Such failure, under such circumstances, would not be fatal even at common law.”
The indictment in this case falls within the rule there discussed.
The second point presents a question of more difficulty. Section 2 of the act of June 3, 1878 (20 Stat. 89, c. 151 [U. S. Comp. St. 1901, p. 1545]), requires the entrvman at the time of making his application to make oath that he has not made any agreement or contract in any way or manner, directly or indirectly, with any person or persons, by which the title shall inure to the benefit of any person except himself. That it was intended to meet the evasions which would be resorted to from time to time is quite manifest. Schemes, devices, and' subterfuges which ingenuity could invent, and of which this case furnishes a striking example, were in view equally with formal contracts. We are precluded from holding otherwise by the comprehensive language of the statute; and to sustain the contention of plaintiff in error in that regard would be equivalent to saying that its purpose can be entirely defeated by secret understandings and ingenious circumventions. Boren v. United States, 144 Fed. 801, 804, 75 C. C. A. 531. With this construction in mind, the particular scheme which was conceived in this case will be examined. The certificates, [707]*707so called, were, of course, devices. Miller objected to giving the name of the responsible head of his company to one of the prospective entrymen, but, on being pressed, he did give a name, concerning which he testified as follows:
“T gave him the name oí J. D. Wilson, of Minneapolis, Minn., as the head man. That was the first name that happened to come to my mind. lie had nothing to do with the company. I do not know that there was any such individual.”
Again he testified:
“X represented no company at that time. The company was only on paper. It was a name assumed for the purpose of carrying out our scheme.”
The case must therefore rest upon the undisputed fact that there was no such company as the Emmitsburg of New Zealand. That company was fictitious, and Wilson as its manager had no existence. There was, then, no contract or agreement with any person to convey, or whereby the land might inure in whole or in part to the benefit of such company. It was not the purpose to supply money with which to make the entries nor to acquire title. The scheme was to work the entrymen out of the location fees; to defraud them. Here the matter was to end, and did end. But the entrymen and the defendants, other than the plaintiff in error, and he, giving clue effect to the ver-', diet of the jury, thought there was a contract to convey, and therefore it is that in this regard the affidavits contained averments which the entrymen did not believe to be true. This was perjury. Section 5392, Rev. St. (U. S. Comp. St. 1901, p. 3653). Procuring the making of such affidavits was subornation of perjury. Section 5393, Rev. St. (U. S. Comp. St. 1901, p. 3654). The case was submitted to the jury upon the theory that it might find from the evidence agreements as charged in the indictment by which the lands to be acquired were to be conveyed, or might inure to the benefit of some person other than the entrymen. Miller, Kincart, and the plaintiff in error intended that the false affidavits should be made, and the plaintiff in error supposed that there were agreements in fact as well as in form that the lauds were to be entered and conveyed to Miller’s company. In addition to the certificates which were signed, there was evidence to establish that, at least as to some of the entrymen, there were oral agreements made with Miller to convey to this company; but, bearing-in mind that the entrymen intended to defraud the government oí these lands, and that the plaintiff in error intended to, and did give his aid to what he supposed was a deliberate attempt to do so, the case must turn upon whether there were agreements or such an arrangement as would result iu the lands inuring to the benefit of some person other than the persons who were making entries of them. If these agreements had been made by Miller concerning lands which might properly he the subject of contract, he could have been held personally responsible. They would have been enforceable as against him under the rule that one who holds himself out as the agent of a principal who has no existence is personally liable. Patrick v. Bowman, 149 U. S. 124, 13 Sup. Ct. 866, 37 L. Ed. 790; Paine v. Loeb, 96 Fed. 167, 37 C. C. A. 434; Second Kent’s Commentaries, 630; [708]*708Booth v. Wonderly, 36 N. J. Law, 250; Story on Agency, § 230, 280, 281.
Remembering, now, the comprehensive provisions of the statute as prohibiting all manner of devices, we find that the agreement was-with Miller, and not w-ith his company, and while he, as he says, did not intend to comply on his part, yet the vice prohibited is the making of it, and the conspiracy charged is having suborned these entrymen to swear falsely that no such agreement was made when in fact it was. The charge assumed that there might have been a contract to convey to the Einmitsburg of New Zealand, it is true, but the jury could not have been thereby misled, for, if an agreement with M iller would have bound him personally under such conditions, the lawful conditions of a contract being present, it would make no difference whether the contract was made with Miller’s company or with him. There was nothing in the evidence which in any way could tend to confuse the jury. There was in this regard but one transaction, and the mere presentation of the case upon the theory that there may have been a contract made with the Emmitsburg of New Zealand was accompanied also by the assumption that the jury might from the evidence find that the contracts were with Miller, and, inasmuch as there was nothing else before the jury except this transaction, there could have been no prejudice.
The conclusion reached by the jury was correct, even though it may not have been told in so many words that Miller would be responsible if his company had no actual existence. This it appears the court assumed as a proposition of law without explaining it to the jury. It could not have in any way influenced the verdict. It was not like submitting two distinct transactions, from which different results might flow, for the consideration of the jury, leaving them to find the one or the other according to their judgment of the evidence.
The plaintiff in error relies upon the position that whatever arrangement was made related to the timber upon the land, and not to the land itself. Section 1 of the act makes such lands subject to entry as are "valuable chiefly for timber, but unfit for cultivation.” It would be contrary to the spirit of this legislation to declare that an entryman may contract to sell that which gives the land its only value, and thereby escape punishment under so technical a contention. The timber is a part of the land, and one who thus seeks to avoid the plain spirit and even letter of the law cannot complain of penalties inflicted. Besides, the conspiracy here was to acquire the lands.
Finding no prejudicial error in the record, the judgment will be affirmed.