131 F. 968 | U.S. Circuit Court for the District of Southern New York | 1904
This court has recently held in another removal proceeding under a different indictment against this same petitioner that the insufficiency of the indictment will not be
The crime with which the indictment purports to charge the petitioner is defined in section 5440, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3676]:
“5440. If two or more 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 more than ten thousand dollars, or to imprisonment for not more than two years, or to both fine and imprisonment in the discretion of the court.”
There are 30 counts in the indictment, each concerned with a separate transaction. It will be necessary to consider a single count only, since all are substantially alike. The pleader has followed the archaic forms of expression commonly used in criminal practice— obscure, involved, tautological, and verbose. A single sentence runs stumbling over several printed pages without a period. The meaning can be discovered only by carefully rewriting the sentence actually or mentally, so as to conform it to the canons of modern English. When this is done, it will be found that the facts upon which the charge of conspiracy is based are these: Heretofore the United States, being at the time the owner thereof, conveyed to the states of California and Oregon, respectively, certain sections of public land; the sections so conveyed to these states being known as school lands. These school lands, or at least some portion of them, the two states sold, granted, and conveyed to individual holders. Subsequently the United States decided to establish forest reserves in certain localities in those states (and elsewhere), and under authority of statute maps were filed designating the boundaries of such reserves. Within those boundaries it would happen that, besides land still belonging to the United States, there would be included school lands which had been transferred to the states, and which were still held by them, and also school lands which the said states had conveyed to private owners by patents duly executed, and also school lands as to which steps had been taken to secure patents from the states. Inasmuch as it was desirable that all lands within forest reserves should be under the absolute control of the government, the statutes further provided that United States public lands located outside the limits of the reserves might be exchanged for lands within the same, with assent of the owner. Presumably since the possibility of an increase in value would be greater outside than in, the owners gen
In Act June 4, 1897, c. 2, 30 Stat. 34, 36 [U. S. Comp. St. 1901, p. 1538], supplemental to Act March 3, 1891, c. 561, 8 24, 26 Stat. 1103 [U. S. Comp. St. 1901, p. 1537] :
"That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: provided further, that in eases of unperfected claims the requirements of the law respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims.”
In Act June 6, 1900, c. 791, 31 Stat. 614:
“That all selections of land made in lieu of a tract covered by an unperfected bona fide claim, or by a patent, included within a public forest reservation, as provided in the act of June fourth, eighteen hundred and ninety-seven, * * * shall be confined to vacant surveyed and non-mineral public lands which are sub.iect to homestead entry not exceeding in area the tract covered by such claim or patent: provided, that nothing herein contained shall be construed to affect the rights of those who, previous to October first, nineteen hundred, shall have delivered to the United States deeds for lands within forest reservations and make application for specific tracts of lands in lieu thereof.”
This provision was re-enacted March 3, 1901, 31 Stat. 1037, c. 831 [U. S. Comp. St. 1901, p. 1544],
For reasons of public policy, which may be readily appreciated, these two .states offered their school lands for sale with certain statutory restrictions. Sales were to be made only to citizens of the United States or to persons who had declared intention to become citizens, and only upon affidavit of the applicant showing his qualifications, and, amongst other things, his intention to purchase such lands in good faith, and for his own benefit, and that he had made no contract or agreement to sell the same. Moreover, the amount of such lands which should be sold by the state to each resident applying therefor was restricted to 640 acres in California and 320 acres in Oregon. Once the sale was made, however, to a bona fide applicant, and title in him perfected by the delivery of a patent for the same, the lands so sold became his to dispose of as he pleased, and there is nothing called to the attention of this court in the legislation of those states which prohibits a purchaser from buying such lands from any resident patentees who might subsequently decide to sell, even although by such purchases he might become the sole owner of thousands of acres of such school lands.
The particular “false and fraudulent practice” which is charged as the gravamen of the conspiracy is this: Applications for purchase were to be made and filed in the names of fictitious persons, and in the names of persons not really desiring and not qualified to purchase the same, and of persons who had already assigned to the conspirators; and these applications were in many instances to be supported by false, fraudulent, or fictitious affidavits. The details need not be more particularly rehearsed. Suffice it to say that the
It is true that the result of the conspiracy would be that a single small group of individuals might become possessed by exchange of large holdings of outside lands, which might otherwise have been more widely distributed; but that would not be a fraud on the United States, because under the laws, state and national, as they stand, it would be possible for a single individual, acting in entire good faith, to acquire by purchase from honest, bona fide state patentees the title to all the school lands in the state, and, by exchanging them
Upon the broadest construction which can be given to the indictment it does not set forth facts tending to show a conspiracy to commit any offense against or to defraud the United States, and the petitioner should therefore be discharged. Should the District Attorney desire to appeal, the petitioner will be required during its pendency to give bail in the amount fixed when this proceeding was instituted.