SEAMAN, Circuit Judge
(after stating the facts as above). When the present appeals were taken, from the orders (1) denying the application for removal of the appellees to the District of Oregon for trial under the indictment there found, and (2) discharging them from custody under the mittimus of the commissioner, no decision of the Supreme Court, as the ultimate authority, appears to have settled, in express terms, the doctrine applicable to such removal proceedings. In the recent case, however, of Tinsley v. Treat, 205 U. S. 20, 27 Sup. Ct. 430, 51 L. Ed. 689, these propositions were directly involved and established; That the duty of the District Judge, on an application for removal under section 1014., is judicial, not merely ministerial, in the inquiry which it involves of probable cause for the charge upon which removal is sought; that thereupon the accused is entitled “to the judgment of the District Judge as to the existence of [such] probable cause” under evidence tendered; that the indictment there presented “cannot be treated as conclusive” of such cause, and (if valid on its face) is only prima facie evidence, which may be overcome by proof; and that evidence to that end is not only admissible upon the inquiry, but must receive just consideration, in so far as it tends to disprove either jurisdiction for trial or amenability under the charge.
The appellees tendered competent evidence from the records of the General Land Office that all the entries of public lands mentioned in [434]*434the indictment were perfected and certificate of purchase issued therefor, prior to all of the alleged overt acts under the alleged conspiracy, and more than three years prior to the filing of the indictment. Such proof was clearly admissible, within the above-stated doctrine, for the purposes of this judicial inquiry of probable cause, upon the application for removal; so that error is not well assigned for such reception. With this uncontroverted fact of all the entries in evidence, the removal was rightly denied, if no foundation remains for prosecution under the indictment; and the questions for review, upon the merits of the controversy as it appears to have been presented below, are: (1) Whether the facts averred in the indictment constitute an offense; and (2) if an offense appears therefrom, whether the appellees are absolved from liability by the above-mentioned proof of entries.
The conclusion by the District Judge that no probable cause existed for a warrant of removal to answer the indictment, necessarily involved release of the accused from the commitment pending such hearing; and whether such order of discharge was thus incidental, as of course, to denial of the warrant, or is referable to the writ of habeas corpus, is not material for the purposes of this review. As the proceedings before the commissioner were preliminary only, for apprehension of and holding the accused either for recognizance or pending application for removal, the commitment had completely served its purpose when such application was denied, and the appellees became entitled to their discharge, for which an order was needful. Whatever proceedings were appropriate to that end, all parties were before the court, with the commissioner’s return of the record under the writs of habeas corpus and certiorari, so that the exercise of jurisdiction for their release is unquestionable — resting alone on the finding in the order of “no legal cause” for their further restraint. The questions discussed in the appellant’s brief, whether the commissioner erred in excluding the evidence offered before him, and whether either writ authorized review of his rulings, are not involved in the present inquiry; nor are the numerous authorities which are there cited for the general rule in habeas corpus proceedings — that jurisdictional defects only are cognizable for discharge from restraint under adjudication thereof by a competent court — applicable in any sense to the relief granted below.
Both orders, therefore, rest alike upon the finding of no probable cause for a warrant of removal, and if no indictable offense appears, when the facts averred in the indictment are supplemented by the proof that all entries of the lands referred to were completed on or before March 17, 1903, the orders were rightly granted, irrespective of the question discussed in the briefs, whether the indictment is sufficient on its face to authorize removal. With the procurement of these entries and purchases alleged in the indictment as the sole object of the conspiracy charged, we perceive no difficulty in the way of determining the merits of the finding on which both orders are predicated.
The offense of conspiracy, involved in these charges, is created by section 5440 of the Revised Statutes, and differs from the like offense at common law in the express provision for a so-called locus penitentise —that “one or more bf such parties [conspiring] do any act to effect [435]*435the object of the conspiracy.” Its ingredients are well settled, as defined in United States v. Britton, 108 U. S. 199, 204, 2 Sup. Ct. 531, 534, 27 L. Ed. 698, and subsequent decisions (10 Rose’s Notes U. S. 561), to consist “of the conspiracy alone,” and nbt “of both the conspiracy and the acts done to effect” its object. No specific acts are set out in the indictment as done by either alleged conspirator to accomplish the purpose of the conspiracy, except the several payments to persons named in the counts respectively, for service and acts in carrying out the conspiracy, alleged as having been induced and procured by such payments — with the date of payment specified, but no mention of the date of service. The earliest date stated for these payments is April 4, 1903, while others are specified in May and June, respectively; and the indictment bears date April 3, 1906. Under section 1044 Rev. St. (U. S. Comp. St. 1901, p. 725), which is applicable to prosecutions under section 5440 (United States v. Hirsch, 100 U. S. 33, 36 [25 L. Ed. 539]), the indictment must be found “within three years next after such offense shall have been committed,” so that both fact and date of the overt act upon which the offense is charged are of the utmost materiality upou the present issue. If either of these averments of payment so made can be accepted, in the light of the proven facts, as the inception of liability under the charge of conspiracy, the date stated is within this period of limitation; and if not thus applicable, the further question thereupon — raised in the opinion below and on this appeal, as to the operation of such limitation — is not involved in the consideration, namely, whether such period runs from the first disclosure of an overt act, or remains open for succeeding acts in continuation of the conspiracy, to run from the final act.
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SEAMAN, Circuit Judge
(after stating the facts as above). When the present appeals were taken, from the orders (1) denying the application for removal of the appellees to the District of Oregon for trial under the indictment there found, and (2) discharging them from custody under the mittimus of the commissioner, no decision of the Supreme Court, as the ultimate authority, appears to have settled, in express terms, the doctrine applicable to such removal proceedings. In the recent case, however, of Tinsley v. Treat, 205 U. S. 20, 27 Sup. Ct. 430, 51 L. Ed. 689, these propositions were directly involved and established; That the duty of the District Judge, on an application for removal under section 1014., is judicial, not merely ministerial, in the inquiry which it involves of probable cause for the charge upon which removal is sought; that thereupon the accused is entitled “to the judgment of the District Judge as to the existence of [such] probable cause” under evidence tendered; that the indictment there presented “cannot be treated as conclusive” of such cause, and (if valid on its face) is only prima facie evidence, which may be overcome by proof; and that evidence to that end is not only admissible upon the inquiry, but must receive just consideration, in so far as it tends to disprove either jurisdiction for trial or amenability under the charge.
The appellees tendered competent evidence from the records of the General Land Office that all the entries of public lands mentioned in [434]*434the indictment were perfected and certificate of purchase issued therefor, prior to all of the alleged overt acts under the alleged conspiracy, and more than three years prior to the filing of the indictment. Such proof was clearly admissible, within the above-stated doctrine, for the purposes of this judicial inquiry of probable cause, upon the application for removal; so that error is not well assigned for such reception. With this uncontroverted fact of all the entries in evidence, the removal was rightly denied, if no foundation remains for prosecution under the indictment; and the questions for review, upon the merits of the controversy as it appears to have been presented below, are: (1) Whether the facts averred in the indictment constitute an offense; and (2) if an offense appears therefrom, whether the appellees are absolved from liability by the above-mentioned proof of entries.
The conclusion by the District Judge that no probable cause existed for a warrant of removal to answer the indictment, necessarily involved release of the accused from the commitment pending such hearing; and whether such order of discharge was thus incidental, as of course, to denial of the warrant, or is referable to the writ of habeas corpus, is not material for the purposes of this review. As the proceedings before the commissioner were preliminary only, for apprehension of and holding the accused either for recognizance or pending application for removal, the commitment had completely served its purpose when such application was denied, and the appellees became entitled to their discharge, for which an order was needful. Whatever proceedings were appropriate to that end, all parties were before the court, with the commissioner’s return of the record under the writs of habeas corpus and certiorari, so that the exercise of jurisdiction for their release is unquestionable — resting alone on the finding in the order of “no legal cause” for their further restraint. The questions discussed in the appellant’s brief, whether the commissioner erred in excluding the evidence offered before him, and whether either writ authorized review of his rulings, are not involved in the present inquiry; nor are the numerous authorities which are there cited for the general rule in habeas corpus proceedings — that jurisdictional defects only are cognizable for discharge from restraint under adjudication thereof by a competent court — applicable in any sense to the relief granted below.
Both orders, therefore, rest alike upon the finding of no probable cause for a warrant of removal, and if no indictable offense appears, when the facts averred in the indictment are supplemented by the proof that all entries of the lands referred to were completed on or before March 17, 1903, the orders were rightly granted, irrespective of the question discussed in the briefs, whether the indictment is sufficient on its face to authorize removal. With the procurement of these entries and purchases alleged in the indictment as the sole object of the conspiracy charged, we perceive no difficulty in the way of determining the merits of the finding on which both orders are predicated.
The offense of conspiracy, involved in these charges, is created by section 5440 of the Revised Statutes, and differs from the like offense at common law in the express provision for a so-called locus penitentise —that “one or more bf such parties [conspiring] do any act to effect [435]*435the object of the conspiracy.” Its ingredients are well settled, as defined in United States v. Britton, 108 U. S. 199, 204, 2 Sup. Ct. 531, 534, 27 L. Ed. 698, and subsequent decisions (10 Rose’s Notes U. S. 561), to consist “of the conspiracy alone,” and nbt “of both the conspiracy and the acts done to effect” its object. No specific acts are set out in the indictment as done by either alleged conspirator to accomplish the purpose of the conspiracy, except the several payments to persons named in the counts respectively, for service and acts in carrying out the conspiracy, alleged as having been induced and procured by such payments — with the date of payment specified, but no mention of the date of service. The earliest date stated for these payments is April 4, 1903, while others are specified in May and June, respectively; and the indictment bears date April 3, 1906. Under section 1044 Rev. St. (U. S. Comp. St. 1901, p. 725), which is applicable to prosecutions under section 5440 (United States v. Hirsch, 100 U. S. 33, 36 [25 L. Ed. 539]), the indictment must be found “within three years next after such offense shall have been committed,” so that both fact and date of the overt act upon which the offense is charged are of the utmost materiality upou the present issue. If either of these averments of payment so made can be accepted, in the light of the proven facts, as the inception of liability under the charge of conspiracy, the date stated is within this period of limitation; and if not thus applicable, the further question thereupon — raised in the opinion below and on this appeal, as to the operation of such limitation — is not involved in the consideration, namely, whether such period runs from the first disclosure of an overt act, or remains open for succeeding acts in continuation of the conspiracy, to run from the final act.
Whatever may appear from the indictment as the relation of these payments and of the payees to the alleged conspiracy, the proof of the fact and date of completion of entries and issuance of certificates of purchase establishes beyond controversy that each payment was made not as an “act to effect the object of the conspiracy,” nor to procure services to that end, but in settlement or payment for a pre-existing service or obligation; that such service was necessarily completed and the obligation incurred prior to the date of the last certificate of purchase, March 17, 1903; so that neither fact nor date of the payment so made can serve as an overt act for charging conspiracy under section 5440, and thus evade the above-mentioned limitation. Assuming that such payment may be provable in support of the charge, it cannot be received by way of direct proof, as an act in the execution of the conspiracy, but as circumstantial evidence tending to show, either the fact of conspiracy or some of the participants therein. The facts that final entries were made and purchases certified are presumptive, if not decisive, under the terms of the statutory provisions therefor, known as the “Stone and Timber Act,” that all proceedings,or service required to be performed to that end, by either and all of the parties named as conspirators or payees, had been entirely performed, when these certificates of purchase were issued, in so far as concerns the conspiracy to defraud the United States. If the appellees were engaged, as alleged, in a fraudulent conspiracy for that object, and pro[436]*436cured the services and action of the several entrymen and the commissioner named as payees respectively, each had then committed and completed every act, fraudulent or otherwise, to accomplish the entries and complete purchases as designed — inclusive, as of course, of the alleged engagement and service for which these subsequent payments were made. Thereafter no occasion remained for further action on the part either of the conspirators or other persons engaged to effect that object; and no opportunity was open to either conspirator for immunity under the locus penitentiae provision of section 5440. Whether settlements between the conspirators or with agents, for profits or services in the conspiracy, were then or subsequently made, or were refused, are facts of no materiality for the operation of either statute — section 5440 or 1044.
We are of opinion, therefore, that any violation of section 5440 was committed and completed before the certificates of purchase were issued, and that no overt act is charged within the period limited by section 1044, however the averments of the indictment are considered.
The contention that the object of the conspiracy was not completed until a patent was issued and delivered is untenable, as we believe, in any view of the effect of the final entries and certificates of purchase thereunder, for the twofold reasons, that violation of the statute (a) in nowise depends upon the success of the conspiracy, and (b) became complete (as before stated) when the final step was taken on the part ■of the conspirators. What course has been or may be adopted by the Rand Office or other departments in reference to these entries, or in issuing or withholding the formal patents thereupon, is plainly immaterial under this indictment. The general doctrine in reference to public lands subject to entry, appears to be settled, that a tract “ceases to be subject to the disposal of the United States,” when' it is entered, paid for, and so certified by the Land Office, although no patent has been delivered (Cornelius v. Kessel, 128 U. S. 456, 460, 9 Sup. Ct. 122, 32 L. Ed. 482, and United States v. Schurz, 102 U. S. 378, 396, 26 L. Ed. 167; 9 Rose’s Notes U. S. 1091); but the status of entries made as averred in the indictment is neither involved nor proper for comment in this opinion.
The orders appealed from are affirmed.