Ex parte Black

• Citation: 147 F. 832
• Parties: Ex parte BLACK et al.
• Decision Date: 27 July 1906
• Court: U.S. District Court — Eastern District of Wisconsin

147 F. 832

Ex parte BLACK et al.

United States District Court, E.D. Wisconsin.

July 27, 1906

Writ of habeas corpus accompanied by a writ of certiorari to the commissioner.

It appears: That the defendants were arrested upon a warrant issued upon the complaint of Edward J. Henning, Assistant United States Attorney for the Eastern district of Wisconsin in which there was set out in substance the cause of action counted upon in a certain indictment against the defendants who reside in Shawano in this district, which indictment was found in the district of Oregon on the 3d day of April, 1906 charging a conspiracy under section 5440, Rev. St. (U.S Comp. St. 1901, p. 3676), to defraud the government of its title to certain of its public lands situate in Lakeview land district, of Oregon, which were subject to entry under the 'Stone and Timber Act,' so-called. That a bench warrant had been issued upon such indictment and, with a certified copy thereof, forwarded to the authorities of the Eastern district of Wisconsin. Thereupon the accused were arrested and brought before a commissioner, for examination under section 1014, Rev. St. (U.S. Comp. St. 1901, p. 716), for the purpose of procuring an order for the removal of the accused to the district of Oregon. Upon such proceedings a certified copy of the indictment was introduced in evidence. In this indictment, and in the complaint of the District Attorney, the conspiracy was laid as follows: 'And the grand jury aforesaid, upon their oath, do further find and present that from and on the 1st day of September, 1902, and thence down to and inclusive of the 20th day of June, 1903, within the district and state of Oregon and the jurisdiction of this court, the defendants (naming them) and others to this grand jury unknown, did knowingly, willfully, and unlawfully plot, combine, confederate, and agree together with each other and between and amongst themselves, to defraud the United States of America of the possession and use of and title to large tracts of public lands which were then and there owned by and belonging to the United States, in the district and state of Oregon, and in the Lakeview land district thereof, and within the jurisdiction of this court, designated and described as follows: (Here follow twelve descriptions of lands.) That said lands were during said period in said Lakeview land district, subject to entry under that certain act of the Congress of the United States known and designated at the 'Stone and Timber Act' relating to and governing the entry of timber and stone claims under the laws of the United States. That said act is known and designated as Act June 3, 1878, c. 151, 10 Stat. 89 (U.S. Comp. St. 1901, p. 1545) and that the aforesaid plot, conspiracy, combination, confederation and agreement so formed and continued by them (naming the defendants) and others to this grand jury unknown, was to be carried out, accomplished, and effectuated by promising and agreeing to pay, and by paying and causing to be paid, large sums of money to sundry and divers persons, who were thereby induced, caused, procured, and persuaded to make false, fraudulent, fictitious, feigned, untrue, and illegal entries of, to, for and upon the aforesaid lands of the said United States within said land district, and within the jurisdiction of this honorable court.' The overt act in the first count is set out in the following language: 'And that to carry out and accomplish the object and design of the aforesaid plot, conspiracy, combination, confederation, and agreement, and in furtherance thereof, and to effectuate the objects thereof, they (said defendants) and others to this grand jury unknown, did, within the United States and the district and state of Oregon, and within the jurisdiction of this court, promise and agree, and did pay and cause to be paid to one John B. Million, the sum of $200 on the 4th day of April, 1903, by Joseph Black above-named (he being one of the defendants) in the shape and form of a check in words and figures as follows: 'Ashland, Oregon, April 4, 1903. No.-- Bank of Ashland, Pay to John B. Million or order ($200.00) Two Hundred Dollars. Jos. Black.' And that said John B. Million indorsed said check and presented said check to said Bank of Ashland, within the state of Oregon, with his indorsement thereon, and there and then received the amount thereof, to wit, the sum of $200 in gold coin of the United States, whereby, and by no means whereof, said John B. Million was persuaded, caused, procured, and induced to make false, fraudulent, fictitious, feigned, untrue, and illegal application for, and to make false, fraudulent, fictitious, untrue, and illegal final proof and entry under the aforesaid timber and stone act of and for a portion of the above-described lands of the United States, to wit (one of the above descriptions) which said application, proof, and entry were there and then made by said Joseph B. Million, for the use, benefit, and behoof of the said (defendants) and for the use, benefit, and behoof of each of them; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.'

In three additional counts, the conspiracy as laid in the first count is adopted, and the overt acts charged are substantially the same, except as to the name and date. The date of payment in the second count is land on the 23d day of May, 1902, in the third count on the 20th day of April, 1902, and in the fourth count on the 13th day of June, 1902. Upon the examination the commissioner received oral evidence of sundry residents of Shawano, tending to show that the accused had not been absent from their homes for any length of time during the period covered by the indictment, to anticipate any claim that they were fugitives from justice, and also the testimony of several witnesses, whose attendance had been secured by the government, tending to show that all the lands described in the first count of the indictment were entered in October, 1902, and that, as to all such descriptions, the final proofs were made on or before the 17th day of March, 1902; and that on the same day that the final proofs were completed, the necessary money payments made to the government, certificates issued, and thereupon the entrymen transferred their title to said land, presumably to the defendants, but they testified that they were not able to tell who was the grantee in such deeds. Parker, one of the defendants, who resides in Oregon, was also present, and gave evidence that on behalf of all the defendants he secured 16 persons to act as entrymen, who, in consideration of their services in bringing about the fraudulent entries, were to receive $200 each, and that all their expenses were to be paid by defendants, and that after final certificates were secured at the land office, they were to transfer the title so secured. That defendant Parker selected the 16 entrymen and secured adherence to such terms, and that he transported such 16 entrymen in a body from place to place in conveyance ported such 16 entrymen in a body from place to place in conveyance furnished and paid for by the defendants, whenever any step was required to be taken in prosecution of the scheme. It further appeared that the several sums of money paid by the defendants as set forth in the indictment, to the parties for their services in furtherance of the conspiracy were paid 'for making the final entry, final proofs, and conveying, and that such entry, final proofs, and conveyance, were made with the understanding that such sum of money agreed upon, was to be received for such entry, final proof and conveyance.'

Parker's testimony corroborated the witnesses of the government as to dates when entry and final proofs were made. The defendants offered in evidence before such commissioner a certified copy of certain entries in the tract book in the office of the General Land Office at Washington, which was duly authenticated, showing the status of all the lands described in the indictment, showing amongst other things the date of sale of each tract; the number of the receipt and certificates of purchase, the name of the purchaser, the amount paid, etc. This offer was excluded by the commissioner. The offer was renewed upon this hearing and was received. From this official record, it appears that each and every description of such land was entered in October, 1902, and final proofs were made therein in March, 1902, the latest certificate bearing date March 17, 1903. This index consisted of the following columns: 'Description of Tract,' 'Contents,' 'Rate per Acre,' 'Purchase Money,' 'Name of Purchaser,' 'Date of Sale,' No. of Receipt,' and 'Certificate of Purchase,' Under the head of 'Date of Sale,' the latest entry opposite any of these tracts was March 17, 1903. By stipulation of the parties the motion of the government to remove the prisoners to the district of Oregon, pursuant to section 1014, was presented and argued in connection with the habeas corpus proceedings.

Ryan, Ogden & Bottum, M. J. Wallrich and A. S. Larson, for petitioners.

H. K. Butterfield, U.S. Atty., and E. J. Henning, Asst. U.S. Atty.

QUARLES District Judge.

It is conceded by counsel on both sides, that in passing upon the motion to remove the prisoners, the District Judge is called upon to exercise a judicial function involving judicial discretion; but it is strenuously contended that as to any defects disclosed in this indictment, the trial court in Oregon has exclusive jurisdiction. In view of the grave consequences involved to the accused, I am persuaded that something more is expected of the District Judge in this case than a mere perfunctory sanction of the conclusions of...