165 F. 273 | 8th Cir. | 1908
Section 5418 of the Revised Statutes provides that every person who falsely alters any affidavit for the purpose of defrauding the United States, and any person who transmits to or presents at the office of any officer of the United States for such purpose any false, forged, or altered affidavit knowing it to be false, forged, or altered, shall be punished by fine or imprisonment, or both (U. S. Comp. St. 1901, p. 3666).
On March 15, 1889, Lemuel T. Williams made a timber-culture entry of a tract of land in the state of Kansas, and on September 25, 1903, his final proof was allowed by the register and receiver of the proper local land office, and the usual receiver’s final receipt was issued to him. The defendant below was convicted and sentenced under section 5418 for altering the affidavit of Williams made on August 1, 1903, and for transmitting to the register and receiver this altered af
The main contention is that the affidavits could not have defrauded die United States because, before they were made or presented, the entry of Williams, which was made March 15, 1889, had expired and become ineffectual for every purpose under the act of June 14, 1878 (chapter 190, §§ 2, 3, .20 Stat. 114), which governed it, and which provided (1) that if, at any time within five jmars after the expiration of eight years from the date of the entry, the entryman should prove bj7 two credible witnesses that he had cultivated the trees required hy the act, and had otherwise complied with the acts of Congress, he should receive a patent for the land, and (2) that, if at any time after the entry and before the issue of the patent the entryman failed to comply with the requirements of the acts of Congress relating thereto, the land should be subject to entry under the homestead laws or under the limber-culture laws after notice to the original entryman had been given and a determination of the rights of the parties had been made as in other contested cases. The proposition is-that under this act the entry was dead 13 years after Match 15, 1889, or on March 15, 1902, and that the affidavits presented in 1903 could not have deprived the United States of the land. In support of this position counsel cite Northern Pacific Railroad Company v. Dc Lacey, 174 U. S. 622, 630, 633, 19 Sup. Ct. 791, 43 L. Ed. 1111, in which there is a.decision that notwithstanding an uncanceled pre-emption entry made and abandoned in 1859 the United States had, in 1861 and 1884, “full title not reserved, sold, granted, or otherwise appropriated, and free from preemption or other claims or rights” to the lands subject, to the entry, and that no portion thereof liad been “granted, sold, reserved, occupied by homestead settlers or otherwise disposed of” within the meaning of the exceptions to the grant to the Northern Pacific Railway Company by the act of July 2, 1861 (chapter 217, 13 Stat. 365), and Oregon & C. R. Co. v. United States, 189 U. S. 103, 23 Sup. Ct. 673, 47 L. Ed. 726, in which the Supreme Court held that, notwithstanding an uncanceled entry under the Oregon donation act of September 27, 1850 (chapter 76, 9 Stat. 496), as amended by Act Feb. 14, 1853 (chapter 69, 10 Stat. 158), made and abandoned in 1853, the land which was the subject of the entry was not “granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of” on July 25, 1866, within the meaning of the grant to the Oregon Central Railroad Company of that date (14 Stat. 239, c. 242). But these decisions are far from holding that, because those abandoned entries were ineffective against the railroad companies at the times when their respective grants took effect, no one who made or presented forged affidavits to the officers of the Land Department upon the trials of the claims made under those,
It is true that the United States, or any party who has the equitable title under it, may maintain a bill in equity to set aside such a patent or to declare it to be held in trust either on account of error of law, fraud, or gross mistake (James v. Germania Iron Co., 107 Fed. 597, 600, 46 C. C. A. 476, 479), but in the hands of an innocent purchaser for value the title under such a patent is impregnable, and the United States may not maintain a bill to avoid the patent or to recover the title (United States v. Burlington, etc., R. Co., 98 U. S. 334, 342, 25 L. Ed. 198; United States v. California & C. Land Co., 148 U. S. 31, 41, 13 Sup. Ct. 458, 37 L. Ed. 354; United States v. Winona & St. Peter R. Co., 15 C. C. A. 96, 109, 67 Eed. 948, 961; United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 333, 26 Sup. Ct. 282, 50 L. Ed. 499; United States v. Detroit Timber & Lumber Co., 131 Fed. 668, 677, 67 C. C. A. 1, 10; Colorado Coal Co. v. United States, 123 U. S. 307, 309. 322, 8 Sup. Ct. 131, 31 L. Ed. 182; United States v. Clark [C. C.]125 Fed. 774, 776).
In June, 1.903, Williams applied to the local officers of the Land Department to prove up his timber-culture claim. His original entry of March 15, 1889, was uncanceled upon the books of the Land Department. The land was subject to the disposition of the officers of that department, and the power was vested in the local officers, and the drily was imposed upon them, to hear and decide the - question whether or not Williams was entitled to a patent to the land. The laud, the issue, and the parties were within the jurisdiction of the Land Department, and the first action and hearing upon the .application of
And right here is the answer to some other objections of counsel for the defendant. Under the acts of Congress and the rules of the Land Department, a notice of the making of final proof under a timber-culture claim was required to be published 30 days, and proof by affidavit might be taken at the time specified in the notice or at any time within 10 days thereafter. Act March 3, 1879, c. 192, 20 Stat. 472 (U. S. Comp. St. 1901, p. 1392); Act March 2, 1889, c. 381, § 7, 25 Stat. 855 (U. S. Comp. St. 1901, p. 1393); Rev. St. § 2294 (U. S. Comp. St. 1901, p. 1396); Circular General Land Office of January 25, 1904, pp. 74 to 77. The published' notice given in Williams’ case specified Jufy 18, 1903, as the time for taking the proof, and the forged affidavit of Ridpath which was received and approved by the register and receiver as part of .Williams’ proof purported to have been sworn to on September 12, 1903. The receipt in evidence and the submission to the jury of this affidavit is specified as error on the ground that it was not taken in time and was a nullity. The affidavit appeared on its face to have been taken 46 days after the time fixed for its taking by the statute and the rules of the department, but the parties to any litigation may, by express declaration or by silent acquiescence, waive objections to the time and to the method of procuring evidence therein; and after the publication of the notice in Williams’ case the only parties to the proceeding before the officers of the Land Department were the United States, the vendor of the land in question which was present by those officers, and the purchaser, Williams. It may be that their waiver of objections to the Ridpath affidavit on account of the apparent time of its taking would have been unavailing against a third party who had fastened a legal or equitable claim upon the land. But there is no evidence that there was any such party, and the Ridpath affidavit was offered in proof by the defendant for "Williams and was received and acted upon without objection by the United States. Is every deponent who testifies falsely in a deposition taken without adequate notice or out of time after notice, and every one who knowingly puts in evidence a forged deposition wliich appears to be so taken, exempt from prosecution for perjury or for presenting a forged deposition because the deposition might have been excluded on the objection of
If the Ridpath affidavit had been genuine it would have been valid. It purported to have been taken before an officer authorized to admin
It is contended that the affidavit of Williams which was altered by the defendant and sent to the officers was both incompetent and insufficient to sustain either charge based upon it, because the statutes and the regulations of the department requiréd that it should be supported by the testimony of two credibile witnesses and the affidavit of only one witness was taken within the 10 days after the time specified in the notice. Counsel further insist that none of the affidavits was either competent or sufficient to base any charge in the indictment upon, because no proof was made before the officers of the Land Department that the failure of Williams to make his proof within the 13 years arose from ignorance, accident, or mistake. Section 2457, Rev. St. (U. S. Comp. St. 1901, p. 1520). In support of these objections they cite cases in which instruments absolutely and palpably void on their faces, like deeds and wills which have but one witness when the law renders them void unless they have more, have been held not to be subjects of forgery. Pearson v. Commonwealth, 117 Ky. 731, 78 S. W. 1128; Moffit’s Case, 2 East’s P. C. 954. But each of the affidavits in this case was apparently valid on its face, effectual to aid in proving the case and susceptible of use with other proof to defraud the United States of the land; and it is not necessary to a conviction* for perjury, or for uttering a forgery, or for presenting a forged affidavit to an officer to defraud the United States, that the false swearing, the forgery uttered, or the forged affidavit transmitted should be sufficient in itself, without other evidence or acts to sustain the issue in controversy, or to accomplish the purpose of the offense. It is enough that it may be under some contingency aid to bring about that result. State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270; Wood v. People, 59 N. Y. 117; State v. Flagg, 27 Ind. 24; State v. Molier, 12 N. C. 263.
Moreover, the essence of all the offenses charged against the defendant in the second, fifth, and seventh counts of the indictment was the use of the affidavits known by him to contain fraudulent statements made to defraud the United States of the land. He transmitted these affidavits to the officers, and secured the receiver’s final receipt for the land by means of them. He thereby represented to the United States that they were lawfully taken, competent and sufficient to warrant the action which he induced the officers to take thereon, and it ‘would seem- that he is thereby estopped from denying that they were so. In-
This case has been treated thus far upon the theory that the proposition that the entry of Williams expired 13 years from its date, and that it was error for the officers of the local laud office to receive, consider, or approve thereafter proof that Williams had complied with the statutes in everj' other respect, except the time of his presentation of his proof, was sound. But in the authorities cited by counsel for the defendant that proposition was neither considered nor decided. The question there considered was the conflicting claims of entrymen who had abandoned their entries years before the United States made grants to railway companies, and the claims of the beneficiaries of those grants. The general rule, repeatedly announced by the Supreme Court and followed b}' the hand Department, is that an entry of public land under the laws of the United Stales segregates it from the public domain, brings it within the exceptions of the railroad land grants, appropriates it to private, use, and withdraws it from subsequent entry or acquisition until the prior entry is officially canceled and removed. Bardon v. Northern Pacific Railroad Co., 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806; Wilcox v. McConnell, 13 Pet. 498, 513, 10 L. Ed. 264; Witherspoon v. Duncan, 4 Wall. 210, 218, 18 L. Ed. 339; Carroll v. Salford, 3 How. 441, 11 L. Ed. 671; Kansas, Pacific Railroad Co. e. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Hastings & Dakota R. R. Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363; Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796, 39 L. Ed. 906; McIntyre v. Roeschlaub (C. C.) 37 Fed. 556; Hartman v. Warren, 22 C. C. A. 30, 33, 76 Fed. 157, 160; James v. Germania Iron Co., 107 Fed. 597, 603, 46 C. C. A. 476, 482; Railroad Company v. Forseth, 3 Land Dec. Dep. Int. 446, 447; Railroad Company v. Leech, Id. 506; Hollants v. Sullivan, 5 Land Dec. Dep. Int. 115, 118; In re Milne, 14 Land Dec. Dep. Int. 242. The decisions in Northern Pacific Railway Company v. De Lacey, 174 U. S. 622, 19 Sup. Ct. 791, 43 L. Ed. 1111, and Oregon & C. R. Co. v. United States, 189 U. S. 103, 23 Sup. Ct. 673, 47 L. Ed. 726, treat of cases the peculiar 'acts in which the Supreme Court takes great pains to show' excepted them from this general rule. I f the question treated in the authorities just cited had been presented to the officers of the Rand Department, it would be somewhat difficult to hold that it would have been error for them to have decided according to the general rule which prevails in the courts and in the Rand Department. But that issue was not before them. No grantee of the United States, no rival claimant, demanded Williams’ land. The United States had offered to sell it to him in consideration that he would cultivate trees upon it for 8 years, and had given him 5 years thereafter to prove that he had done so. Williams had entered the land, and, according to the affidavits presented to the officers, had accepted the offer and cultivated the trees. The proof presented to them established the fact that he had complied with the terms of the sale in every respect except that he had not proved his compliance until about 18 months after the expiration of the '5
Where a grant has been made to a railroad company on the express condition that it shall construct, equip, furnish, and complete its entire road by a time certain, and it completes it after that time, its grant is not lost by the expiration of the time before the subsequent completion of the railroad. St. Paul & Pacific R. R. Co. v. Northern Pacific R. R. Co., 139 U. S. 1, 11 Sup. Ct. 389, 35 L. Ed. 77; Schulenberg v. Harriman, 21 Wall. 44, 62, 22 L. Ed. 551; United States v. Southern Pacific Ry. Co., 146 U. S. 570, 606, 13 Sup. Ct. 152, 36 L. Ed. 1091; Farnsworth v. Minnesota & Pacific R. R. Co., 92 U. S. 49, 67, 23 L. Ed. 530; United States v. Northern Pacific R. R. Co., 177 U. S. 435, 440, 20 Sup. Ct. 706, 44 L. Ed. 836; United States v. Northern Pacific Railroad Co., 37 C. C. A. 290, 304, 95 Fed. 864, 878. And no sound reason occurs to us why such a forfeiture should be inflicted upon an entryman under the timber-culture act who has for 8 years cultivated the trees upon the prairie and substantialty complied with the requirements of the statute. It is, and it ought to be, the rule and practice of the Land Department that when a default is cured by an' entryman before notice of contest, or notice that any other party claims or desires to enter the land, his entry stands. Heptner v. McCartney, 11 Land Dec. Dep. Int. 400; Thompson v. Bartholet, 18 Land Dec. Dep. Int. 96; Boulware v. Scott, 2 Land Dec. Dep. Int. 263; Stanton v. Howell, 9 Land Dec. Dep. Int. 644; Sewell v. Rockafeller, 10 Land Dec. Dep. Int. 232; Meads v. Geiger, 16 Land Dec. Dep. Int. 366. It was, and it ought to be, the practice of the Land Department for the local officers to receive, consider, and act upon the final proof of timber-culture claims after the expiration of the 13 years. Morris Collar Case, 13 Land Dec. Dep. Int. 339; Pattin v. Smith, 21 Land Dec. Dep. Int. 315; Timpson v. Longnecker, 22 Land Dec. Dep. Int. 59; Zickler v. Chambers, 22 Land Dec. Dep. Int. 208; Carter v. Davidson, 24 Land Dec. Dep. Int. 288, 291.
Whether or not, after the cpnsideration and approval of the proof by the local officers, the case should be referred to the equitable board
Counsel argue that there was a falal variance between the averments in the third and fifth counts oí Hie indictment and the proof, hut the record fails to sustain their position. The indictment set forth the words interlined in the affidavit of Williams, and that affidavit as it read after the interlineation. The proof was that the defendant made the interlineation charged in the indictment, and that he made others not there charged, and that the modified affidavit was as set forth in the indictment. The fact that the government proved interlineations that it did not plead constituted no variance, in view of the fact that its proof of the interlineation charged, and of the changed affidavit corresponded with its averments.
There was no error in the trial of this case, and the judgment below is affirmed.