Meldrum v. United States

Decision Date04 February 1907
Docket Number1,360.
PartiesMELDRUM v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

The plaintiff in error was tried and convicted in the court below upon an indictment which contained 21 counts, alternately charging him with forging and uttering certain false affidavits. The first count is as follows: 'That Henry Meldrum on the 6th day of January, 1902, at the city of Portland, within the state and district of Oregon, for the purpose of defrauding the United States, feloniously did falsely make and forge a certain affidavit, purporting to be the affidavit of one Wm. E. Pardee, a pretended settler upon unsurveyed lands of the United States, which affidavit was for the purpose of procuring said lands to be surveyed by the United States, the tenor of which said false and forged affidavit is as follows, to wit:

"Application for Survey.

"The U.S. Surveyor General, Portland, Oregon-- Sir: I, the undersigned settler, residing upon unsurveyed land, believed to be in Tp. 27 S.,R. 26 E., W.M., Or., a citizen of the United States, and entitled to enter land under the laws thereof, do hereby apply for the survey of the above-named township, or so much thereof as can be surveyed under the present laws and regulations established and prescribed by the Hon. Commissioner of the General Land Office. And I do solemnly swear that I am an actual and bona fide settler upon said unsurveyed land of the United States; that I make this application in good faith, and intend to perfect the title under the homestead laws to my claim, situated in approximate section 17 of the above-named unsurveyed township; that I know the greater portion of said township is not known to be mineral, but is agricultural (timber and grazing land), and as far as I know is not reserved by the government. And I further swear that my improvements consist of house, fences and other improvements, and that I estimate their money value at $375.00 and that I settled upon said land in good faith January 30, 1896.

"(Signature of applicant) Wm. E. Pardee,

''Post Office: Narrows, County of Harney, State of Oregon.

"Subscribed and sworn to before me this 6th day of January, 1902.

"J W. Hamakar, Notary Public for State of Oregon.'

-- with intent then and there to file the same in the office of the Surveyor General of the United States at Portland, Oregon, to be used as a basis for letting a contract for surveying said lands described therein by the United States, and with the further intent that said false and forged affidavit should be transmitted to the Commissioner of the General Land Office of the United States at Washington, District of Columbia, for the purpose of obtaining the approval of and payment for said survey; 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.'

The second count charged the uttering of said false and forged affidavit. The other counts were similar to the first two. The exceptions taken at the trial, if any there were, were not preserved, and no bill of exceptions was presented or allowed. There was no demurrer to the indictment and no objection made thereto in any form, nor was there a motion in arrest of judgment. The case was tried before the Honorable C. B. Bellinger, the former judge of the court below, and on November 17, 1904, the verdict of the jury was returned. On December 13, 1904, the plaintiff in error filed a motion to set aside the verdict and for a new trial, on the ground that the verdict was not sustained by the evidence; that it was contrary to law; that error of law was committed by the judge at the trial; and that error of law was committed in overruling the objection of the plaintiff in error 'to the introduction of any testimony in the cause for the reason that the indictment fails to charge an offense." On June 14, 1906, the plaintiff assigned as additional ground for a new trial 'that after the rendition of the verdict herein, and while said motion for a new trial was pending, and before a decision had been rendered thereon or sentence passed, the Honorable Charles B. Bellinger, district judge of the United States, before whom this cause was tried, died.'

On July 2, 1906 the motion for a new trial was denied, and thereafter the plaintiff in error was sentenced.

Richard W. Montague, for plaintiff in error.

Wm. C. Bristol, U.S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge, after stating the case as above, .

The plaintiff in error contends, first, that the indictment does not state a crime, and that, therefore, no conviction can be based upon it; second, that the judge who tried the cause having died during the pendency of the motion for a new trial his successor in office had no power to deny said motion or to render a judgment or impose sentence.

If there were any objections in the court below to the introduction of testimony on the ground that the indictment failed to charge an offense, they are not preserved in the record, and there is nothing now before us to show that they were made. No demurrer or objection to the indictment having been made in the court below, the only question for this court to determine in that regard is whether it sufficiently charged a crime to sustain the judgment of the court. The indictment charges the felonious making and forging of certain affidavits purporting to be the affidavits of pretended settlers upon unsurveyed lands of the United States, for the purpose of procuring said lands to be surveyed by the United States, by filing the same in the office of the Surveyor General of the United States, to be used as a basis for letting a contract by the United States for such survey, with the further intention that such false and fraudulent affidavits should be transmitted to the Commissioner of the General Land Office at Washington for the purpose of obtaining the approval of and payment for said survey when made. It is contended that the only statutory authority for the survey of public lands is found in section 2401 of the Revised Statutes (U.S. Comp. St. 1901, p. 1477) which provides that when settlers desiring a survey shall file an application therefor in writing and shall deposit in a proper United States depository to the credit of the United States a sum sufficient to pay for such a survey, together with all expenditures incident thereto, without cost or claim for indemnity on the United States, it shall be lawful for the Surveyor General under instructions to survey such public lands, and that, inasmuch as all the expense of the survey of such lands is to be deposited in advance by the settlers desiring the same, there can be no loss or injury to the United States upon any survey, and therefore there can be no purpose to defraud in forging affidavits for the purpose of procuring the same. But this argument leaves out of consideration section 2403 (U.S. Comp. St. 1901, p. 1478), which provides that, where deposits are made in accordance with the provisions of section 2401, certificates shall be issued therefor, which certificates may be used by settlers in part payment for the lands settled upon, or may be assigned by indorsement, and may be received by the government in payment for any public lands of the United States in the states where the surveys are made. It thus appears that money deposited by settlers is not taken in payment for the surveys, but is received as an advance for the present expense thereof, and becomes a charge against the United States, evidenced by certificates which may be used in payment, not only for the lands so surveyed, but for other lands in the state. It is plainly to be seen, therefore, that the government might have been defrauded by the false affidavits for the making of which the plaintiff in error was indicted. The proof in the court below may have shown that the land so to be surveyed was worthless, a desert waste, or that the purpose of the survey which was sought was to give occupation to surveyors at a cost far beyond its value or its just compensation. If it can be...

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24 cases
  • State v. Messino
    • United States
    • Missouri Supreme Court
    • July 3, 1930
    ...for new trial in a criminal case tried before another judge who died while the motion was pending, was expressly upheld in Meldrum v. United States, 151 F. 177 Ct. of App. 9th Circuit). An act of Congress, passed in 1900, authorized such procedure if the evidence had been taken by a stenogr......
  • St. Louis Southwestern Ry. Co. v. Henwood
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 22, 1946
    ...Cir., 25 F.2d 242, 244; Thomas-Bonner Co. v. Hooven, Owens & Rentschler Co., 6 Cir., 284 F. 386, 392, 393; and Meldrum v. United States, 9 Cir., 151 F. 177, 182, 10 Ann. Cas. 324. 7 The original decision of the Commission was June 30, 8 This portion of the supplemental decision of the Commi......
  • Hall v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 8, 1967
    ...Milton v. United States, 71 App.D.C. 394, 110 F.2d 556 (1940); Buckner v. Hudspeth, 105 F.2d 393 (10th Cir. 1939); Meldrum v. United States, 151 F. 177 (9th Cir. 1907); Maloney v. State, 91 Ark. 485, 121 S.W. 728 (1909); 62 W.Va.L.Rev. 393 (1960); 72 Harv.L.Rev. 566 (1959); 37 N.C.L.Rev. 20......
  • Connelly v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 13, 1957
    ...was strictly complied with and we think that law provided due process within the requirements of the Fifth Amendment. Meldrum v. United States, 9 Cir., 151 F. 177; Chin Wah v. United States, 2 Cir., 13 F.2d 530; King v. United States, 6 Cir., 25 F.2d 242; Owens v. Hunter, 10 Cir., 169 F.2d ......
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