101 F. 817 | 8th Cir. | 1900
after stating the case as above, delivered the opinion of the court'.
As there is no bill of exceptions before us, we are confined to those questions which appear in the record. There was no error in consolidating the two indictments, as all the counts in each of the indictments were based on cognate statutes and relate to the same transaction. Logan v. U. S., 144 U. S. 297, 12 Sup. Ct. 617, 36 L. Ed. 429; Porter v. U. S., 33 C. C. A. 652, 91 Fed. 494; Rev. St. § 1024. Moreover, the defendants interposed no objection to the consolidation when made. “Having gone to trial without objection on the indictment as consolidated under the last order of the court, it was not open to any of them to take the objection for the first time after judgment.” Logan v. U. S., 144 U. S. 263, 297, 12 Sup. Ct. 617, 36 L. Ed. 429.
Indictment No. 1,208 is drawn under the provisions of section 3 of the act of congress approved February 25, 1885 (23 Stat. 321). That section reads as follows:
“Sec. 3. That no person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands.:- provided, this section shall not be held to affect the right or title of persons, who have gone upon, improved or occupied said lands under the land laws of the United States, claiming title thereto, iti: good faith.”
The first count is based upon that part of the statute prohibiting, by force, threats, and intimidation, any person from peaceably entering upon and establishing a settlement upon a tract of public land.
The indictment No. 1,209 is drawn under section 5508 of the Revised Statutes of the United States. The first count in that indictment fails to describe any of the acts which constituted the conspiracy. It does not charge what lands Gifford was prevented from entering, nor that they were public lands. This count is therefore clearly bad, and no conviction thereunder can be sustained. Rut the second and third counts of that indictment set out fully all the acts which the defendants conspired to do to prevent Gifford, who was alleged in. the indictment to he a citizen of the United States, from the free exercise and enjoyment of a certain right and privilege secured to him by the laws of the United States; that is to-say, the right to then and there peaceably enter upon, prospect for minerals, initiate, locate, establish, and perfect a mining claim upon the public lands of the United Stales under the public land laws of the United Slates,— describing the .land, and charging that it was public lauds of the United States. The third count sets out the facts even more fully than the second count. Both of these counts charge the facts very fully, much more so than they are charged in the informal ion filed in the case of U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct. 35, 28 L. Ed. 673, which was held to be good by the supreme court. The information in that case is set out at large in U. S. v. Waddell (C. C.) 16 Fed. 221.
The jury rendered a general verdict of guilty on all the counts in both indie Intents; hut two sentences only were imposed, — one under each indictment, — and under ihese the sentence of imprisonment was concurrent. The presence of one bad count does not vitiate the verdict. The mile is that where there is a general verdict of guilty on an indictment containing several counts, some of which are good and some had, and the sentence imposed does not exceed that which might properly have been imposed upon conviction under the counts which are good, the sentence is good, notwithstanding one or more of the counis is had. Evans v. U. S., 153 U. S. 584, 14 Sup. Ct. 934, 939, 38 L. Ed. 830; Id., 153 U. S. 608, 14 Sup. Ct. 939, 38 L. Ed. 830; Claassen v. U. S., 142 U. S. 140. 12 Sup. Ct. 169, 35 L. Ed. 966; Peters v. U. S., 36 C. C. A. 105, 94 Fed. 127; 2 Bish. Cr. Proc. 841.
Neither of the statutes on which the indictments are founded provides for punishment at hard labor, yet: the judgment of the court below is that the defendants shall be confined in the penitentiary of
Section 5541 of the Revised Statutes of -the United States provides that, in .every case where any person convicted of any offense against the. United States is sentenced to imprisonment for a period “longer” than one year, the court by which the sentence is passed may order the same to be executed in any state jail or penitentiary within the district or state where said court is held, the use of which jail or penitentiary is allowed by the legislature of the state for that purpose. In Re Mills, 135 U. S. 263, 270, 10 Sup. Ct. 762, 34 L. Ed. 107, it was held that, where the statute of the United States prescribing a punish ment by imprisonment does not require that the accused shall be confined in the penitentiary, a sentence of imprisonment in the penitentiary cannot be imposed unless the sentence is for a period “longer” than one year. In Re Bonner, 151 U. S. 252, 14 Sup. Ct. 323, 38 L. Ed. 149, the same rule was recognized. The sentences of imprisonment in this case not being for a period longer than one year, it was error to order them .to be. executed by confinement in a penitentiary; and, neither of the statutes on which the indictments are founded providing for punishment at hard labor, that part of the sentence is also erroneous.
Errors of this character, in the sentence merely, do not necessitate á new trial. Gardes v. U. S., supra; Beale v. Com., 25 Pa. St. 11; Murphy v. Massachusetts (decided April 9, 1900) 20 Sup. Ct. 639, Adv. S. U. S. 639, 44 L. Ed. -. The only question in such case is whether the errors in the sentence shall be corrected by the appellate court, as was done in Gardes v. U. S., supra, or whether the record shall be remitted to the trial court, with instructions to modify the sentence by eliminating therefrom the parts which are in excess of the powers of the court imposing the sentence, as was done in Beale v. Com., and Murphy v. Massachusetts, supra. It is competent for the appellate court to pursue either method. We adopt the latter method in this case for the reason that we are not possessed of the requisite information to enable us to designate a suitable jail or other place of imprisonment in lieu of the penitentiary.
The case is therefore remanded to the district court of the Third judicial district of the territory of New Mexico, with instructions to modify the sentences by striking therefrom the words “at hard labor,” and the words “the superintendent of the territorial penitentiary,” and in lieu of th.e latter words designate some suitable jail or other place of imprisonment of the defendants which is not a penitentiary. With this modification, the judgment of the supreme court of the territory of New Mexico and the judgments of the district court of the Third judicial district of the territory of New Mexico are affirmed.