171 F. 82 | 8th Cir. | 1909
Since the judgment of conviction was rendered in this action the Supreme Court of the United States in the case of United States v. F. W. Keitel et al., 211 U. S. 370, 29 Sup. Ct. 123, 53 L. Ed.-, has decided that an indictment will not lie under section 4746, Revised Statutes of the United States, as amended by Act July 7, 1898, c. 578, 30 Stat. 718 (U. S. Comp. St 1901, p. 3279), for the false making of an affidavit under the provisions of section 2 of the act of Congress of June 3, 1878 (20 Stat. 89, c. 151), entitled “An act for the sale of timber lands in the states of California, Oregon, Nevada and Washington Territory,” and extended to all the public land states by Act Aug. 4, 1892, c. 375) 27 Stat. 348 (U. S. Comp. St. 1901, p. 3.545).
As the plaintiff in error was convicted under section 4746, Revised Statutes of the United States, for the false making of an affidavit under section 2 of the act of June 3, 1878, it necessarily follows that on the authority of the case above cited the judgment of the court below must be reversed, unless the conviction can be sustained under section 5392, Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3653), being the general perjury statute. A careful consideration of the record leads us to the conclusion that neither the law nor a due regard for the orderly administration of justice will permit the illegal conviction of the plaintiff in error under section 4746 to be sustained by. endeavoring to bring the indictment and proof under another section of the Revised Statutes which might haye been applicable had the United States chosen to charge the plaintiff in error thereunder. False swearing under section 2 of the act of June 3, 1878,
The judgment of the District Court is reversed, and the case remanded, with directions to quash the indictment.