Olson v. United States

• Citation: 133 F. 849
• Decision Date: 23 November 1904
• Docket Number: 2,074.
• Parties: OLSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

133 F. 849

OLSON v. UNITED STATES.

No. 2,074.

United States Court of Appeals, Eighth Circuit.

November 23, 1904

J. L Washburn and C. A. Severance, for plaintiff in error.

Charles C. Houpt, U.S. Atty.

Before SANBORN and HOOK, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

To undertake to present sufficient of the testimony in this case to determine what proper inferences might be drawn therefrom would require practically a statement of the entire evidence. The following synopsis, however, will be sufficient to indicate the character of the case and the application of the questions of law which are presented:

The testimony discloses that the plaintiff in error was by profession what is known and designated as a 'timber cruiser'; that in June, 1901, he asked several parties if they wished to make $50. Being inquired of as to how it could be done, he told them by taking a claim under the stone and timber act, explaining somewhat to the parties the provisions of the act. On being informed that the parties had no money for expenses, he said that would be arranged for. At his suggestion these parties informed other persons, who called upon Olson to know if they, also, could take lands under the same conditions. This resulted in Olson taking about 25 persons from Duluth by rail to the station or town of Ely from there by stage to Winton, from there by tugboat and rowboats or canoes up the shores of the lake to a certain point, where they disembarked and went but a few hundred feet back from the shore of the lake into the timber. After remaining there a few hours, they returned to Duluth by the same route. None of the entrymen paid any of the expenses of the trip, consisting of railroad, stage fare, hotel bill etc. The testimony does not specifically show who paid the expenses, but the fair inference from the testimony is that they were paid by the defendant, Olson. They were all informed by Olson that they could make $50 by taking a piece of land under the stone and timber act, but were also informed by him that under the law they could not offer to sell it until after they had made final proof. Upon their return Olson notified the parties to go to the office of A L. Agatin to arrange for filing upon the land. The parties, at various dates between June 24th and July 2d, met Olson at the office of Agatin, and from there went to the land office and made their filing upon lands, the description of which they did not personally know, but which was furnished them by Olson at Agatin's office. Nothing seems to have been said to any of the parties about the publication of any notice of their application, but such publications were prepared and made by A. L. Agatin for the respective parties without any suggestion from the parties that he should do so, and we think the evidence fairly discloses that the parties had no knowledge that any such publications were made until the time of making their final proof. Afterwards, and between the 20th and 25th of September, the several parties made their final proofs at the land office, but before making their proofs they received notice through Olson to go to the office of Agatin for that purpose. Upon going to Mr. Agatin's office they were informed by him that certain questions would be asked them at the land office, and that under the law the questions would have to be answered in a certain manner. Each one was then requested to give a mortgage upon their respective tracts of land to cover the amount required to be paid to the government and the expenses incurred. Said mortgages amounted each to approximately $450, varying in amount according to the number of acres and the sum paid to the government. These mortgages were made to the defendant Ross L. Mahon. The parties went to the land office and made their proofs, Mr. Olson acting as a witness for many of them. None of the entrymen expended any money of their own, and when one step in the transaction was taken they apparently did not know what the next step would be, until notified by Olson. After the proofs were made Olson was asked by most of the parties how about their $50, and were informed by him that that would be attended to or arranged in a few days. Between September 21st and 30th, inclusive, each of the parties, at the instance of Olson, executed a deed to the defendant George C. Swallow for all the timber upon their respective tracts of land; the consideration in each of said deeds, with the exception of five, being stated as the sum of $500, and each of the parties receiving therefor the sum of $50. Of the parties who thus entered land were Ella Phillips, Albert B. King, and Eugene N. Dwello. At the May term, 1903, of the United States District Court for the District of Minnesota, sitting at Duluth, the grand jurors presented an indictment against said Olson, Ross L. Mahon, Arcadius L. Agatin, Lewis W. Hopkins, and George C. Swallow, charging them with the crime of conspiracy to defraud the United States out of the title and possession of large tracts of land situated in the county of Lake and state of Minnesota, of great value, specifically describing one tract of land, and that in pursuance of said conspiracy they caused said Ella Phillips to enter the said tract at the United States land office, under the stone and timber act, not for her own use, but for the use and benefit of said Olson, Mahon, Agatin, Hopkins, and Swallow, said indictment being No. 3,189; and at the October term, 1903, of said court, the grand jurors presented two other indictments against defendants for like offenses, one based upon the entry of said King, known as 'Indictment No. 3,254,' and the other upon the entry of said Dwello, known as 'Indictment No. 3,253.' In December, at a sitting of the court, a separate trial was granted to the defendant Olson, and the court, upon application of the United States Attorney, consolidated the three indictments for the purposes of the trial, to which the defendant objected. At the close of the evidence indictments 3,189 and 3,254 were dismissed, on motion of the United States Attorney. The trial resulted in a verdict of guilty. Motions in arrest of judgment and for a new trial were made and overruled, and judgment of sentence pronounced, to reverse which judgment he has brought the case to this court. As there are only 365 assignments of error, they may for convenience be grouped together and all properly considered under a few heads.

We think the three indictments were properly consolidated for the purpose of the trial. Whether they arose out of the same transaction, it is unnecessary to state. They were of the same class of crimes and offenses, and might have all been joined in one indictment in separate counts thereof. Rev. St. Sec. 1024 (U.S. Comp. St. 1901, p. 720); U.S. v. O'Callahan, 6 McLean, 596, Fed. Cas. No. 15,910; United States v. Devlin, 6 Blatchf. 71, Fed. Cas. No. 14,953; Pointer v. United States, 151 U.S. 396, 400, 14 Sup.Ct. 410, 38 L.Ed. 208; Williams v. United States, 168 U.S. 382, 390, 18 Sup.Ct. 92, 42 L.Ed. 509. Where several indictments are presented, embracing offenses which might have been joined in one indictment, they may be consolidated for the purpose of trial. Rev. St., Sec. 1024; Williams v. U.S., supra. As the indictments charge a conspiracy to defraud the United States out of the lands in question in violation of Stone and Timber Act June 3, 1878, c. 151, 20 Stat. 89 (U.S. Comp. St. 1901, p. 1545), it becomes necessary before passing upon some of the questions urged against the sufficiency of the indictment, to consider the correct meaning and interpretation of said act. The act provides that any citizen of the United States may purchase, under certain conditions, lands of the United States which are valuable chiefly for stone or timber and are unfit for cultivation, to an amount not exceeding 160 acres. One of the conditions of such purchase is that the party seeking to make such purchase shall--

'File with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation, and chiefly valuable for its timber or stone; that it is uninhabited; * * * that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith, to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract in any way or manner with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person except himself; which statement must be verified by the oath of the applicant before the register or receiver of the land office within the district where the land is situated.'

The provisions of this statute were before the Supreme Court, and considered in United States v. Budd, 144 U.S. 154 12 Sup.Ct. 575, 36 L.Ed. 384, and by this court in United States v. D.T. & L. Co. (C.C.A.) 131 F. 668. In the first case the Supreme Court held that the statute did not 'limit the dominion which the purchaser has over the land after its purchase from the government or restrict in the slightest his power of alienation'; that the statute only prohibited his entering the land under an agreement whereby he was acting for another; that he might make a valid entry of such lands, though with a view of disposing of the same after he had completed the purchase, provided that at and before the time of such purchase he had not entered into an agreement with another,...