Krause v. United States

• Decision Date: 20 August 1906
• Docket Number: 2,359.
• Parties: KRAUSE V. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

147 F. 442

KRAUSE V. UNITED STATES. ^[1]

No. 2,359.

United States Court of Appeals, Eighth Circuit.

August 20, 1906

R. C Noleman and C. C. Barker, for plaintiffs in error.

Sylvester R. Rush, Special Asst. U.S. Atty. (Charles A. Goss, U.S Atty., on the brief).

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

PHILIPS District Judge.

The defendants were prosecuted under three indictments, found at successive terms of court, containing in all 17 counts.

They are predicated of sections 1 and 3, c. 149, Act Feb 25, 1885 23 Stat. 321, 322 (U.S. Comp. St. 1901, pp. 1524, 1525) which are as follows:

'that all inclosures of any public lands in any state or territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited; and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any state or any of the territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and hereby prohibited.'

'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 in good faith.'

,as the offenses charged are under the same statute, with the proper information which should precede the presentation of an indictment for the consideration of the grand jury, the offenses could have been embraced in one indictment, and with proper analysis could have been condensed into fewer counts, always to be desired, as it tends to prevent embarrassing confusion in the consideration of a multiplicity of issues which are difficult to be intelligently carried in the minds of the jury through a protracted trial, and to be properly separated in making up their verdict.

But there is no merit in the objection made on behalf of plaintiffs in error (hereinafter for convenience designated the defendants) to the action of the court in consolidating the several indictments for trial. As the several acts charged are predicated of legally allied transactions of the same degree, their consideration for trial to one jury was permissible under section 1024, Rev. St. U.S. (U.S. Comp. St. 1901, p. 7201). Logan v. United States, 144 U.S. 263, 12 Sup.Ct. 617, 36 L.Ed. 429; Pointer v. United States, 151 U.S. 401, 14 Sup.Ct. 410, 38 L.Ed. 208; Bucklin v. United States (No. 2) 159 U.S. 685, 16 Sup.Ct. 182, 40 L.Ed. 304.

Neither was there reversible error in the action of the court in refusing the request of defendants for separate trials. In practice this is matter resting largely in the sound discretion of the trial court, which will not be reviewed in the absence of clear indications that serious prejudice resulted therefrom to one or more of the defendants. United States v. Ball, 163 U.S. 662, 16 Sup.Ct. 1192, 41 L.Ed. 300. At the time such preliminary question arises the judge, not being in possession of other facts than those disclosed on the face of the indictment, must act thereon until a clear showing made on the part of the objecting defendant that his interests will be seriously prejudiced by a joint trial. And where it becomes apparent to the presiding judge in the progress of the trial that injustice may be done to any defendant by such joint trial, it is to be presumed that he will afford relief by awarding a new trial. As the defendants were acquitted on certain counts and convicted on others, if any of the latter are good, they are sufficient to support the verdict; the penalty imposed by the judgment of the court being within the limit permissible under either of such counts. Dunbar v. United States, 156 U.S. 185-192, 15 Sup.Ct. 325, 39 L.Ed. 390;

Tubbs v. United States, 105 F. 61, 44 C.C.A. 357. Both defendants below were found guilty on the first and third counts of the third indictment; the defendant John Krause being sentenced to pay a fine of $800 and one-half the costs, and the defendant Herman H. Krause to pay a fine of $500 and one-half the costs.

The first count of the third indictment is predicated of section 1 of said statute, which, after laying the venue, charges that the defendants on the 1st day of August, 1903--

'Did then and there wrongfully, unlawfully, willfully and knowingly maintain and control an inclosure of the public lands of the United States, containing four thousand five hundred and sixty acres (a particular description of which follows), said inclosure so maintained and controlled consisting of and being posts and wire fences, and they, the said John Krause and Herman H. Krause, so maintaining and controlling said fence and inclosure as aforesaid, then and there having no claim or color of title to any of said land, made or acquired in good faith or asserted right thereto by or under claim made in good faith with a view to entry thereof at the proper land office of the United States in said District, under the general laws of the United States, contrary,' etc.

This clearly enough charges the offense of maintaining and controlling an inclosure of public lands within the prohibition of the statute.

The third count charges that the defendants--

'Did then and there unlawfully, willfully, wrongfully, and knowingly assert a right to the exclusive use and occupancy of certain public lands of the United States, by then and there taking actual and exclusive possession thereof, and which said public lands consisted of four thousand five hundred and sixty acres (then follows a specific description of the land, being the same as that contained in the first count aforesaid), and they, the said John Krause and Herman H. Krause, then and there had no claim or color of title to any of said lands, or any asserted right thereto, by or under claim or color of title made or acquired in good faith by or under claim made in good faith with a view to entry thereof at the proper land office of the United States in said district, under the general laws of the United States, contrary,' etc.

This brings the act done clearly within the clause of the first section of the statute prohibiting 'the assertion of a right to the exclusive use and occupancy of any part of the public lands * * * without claim, color or title, or asserted right,' etc. In the absence of all the evidence presented at the trial (as the bill of exceptions does not profess to contain all the evidence) the court must assume that there was sufficient evidence to support the finding. McCarty v. United States, 101 F. 113, 41 C.C.A. 242; Durland v. United States, 161 U.S. 306, 312, 16 Sup.Ct. 508, 40 L.Ed. 709; Hansen v. Boyd, 161 U.S. 397, 16 Sup.Ct. 571, 40 L.Ed. 746. It therefore only remains to determine whether or not there was any reversible error committed by the court in the progress of the trial, the charge of the court not being preserved in the bill of exceptions.

The assignment of errors and the brief on behalf of defendants pay little heed to the rules prescribed by this court as to what they should contain. The questions sought to be raised are so obscured by lack of directness and specifications, and proper references to the record where instances complained of may be found, that the court, out of a desire to see that no injustice was done to the defendants in matters of law, have imposed upon themselves much labor and pain in going carefully through the record of proceedings in search of any substantial errors.

Complaint is made of the statement of the court when inquired of as to how many peremptory challenges would be accorded to the defendants that they were entitled to only three. Unquestionably, had the trial been had on the only one indictment, the defendants would have been entitled to but three peremptory challenges. Although there were three indictments, the offenses charged being based on the same statute and allied in character and degree; they could have been set out in separate counts in the same indictment. Does it make any difference that the three indictments were consolidated for trial? In Mutual Life Insurance Company v. Hillmon, 145 U.S. 285, 12 Sup.Ct. 909, 36 L.Ed. 706 the beneficiary under several policies of insurance taken out upon the life of John W. Hillmon, in different insurance companies, brought separate suits on each policy against the insurers. They were consolidated for trial, and the question arose as to whether or not each defendant was entitled to three peremptory challenges. It was held that they were. The court said that, although consolidated for convenience in the economy of time and cost, the...