Lonabaugh v. United States

• Decision Date: 18 June 1910
• Docket Number: 2,698.
• Citation: 179 F. 476
• Parties: LONABAUGH et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

179 F. 476

LONABAUGH et al. v. UNITED STATES.

No. 2,698.

United States Court of Appeals, Eighth Circuit.

June 18, 1910

Syllabus by the Court.

While under Rev. St. Sec. 5440 (U.S. Comp. St. 1901, p. 3676), the gravamen of the offense is the conspiracy, there also must be an overt act to make the offense complete, and so the period of limitation within which it may be prosecuted must be computed from the date of the overt act rather than the formation of the conspiracy. And where during the existence of the conspiracy there are successive overt acts, the period of limitation must be computed from the date of the last of them, of which there is appropriate allegation and proof.

Under Rev. St. Sec. 5440 (U.S. Comp. St. 1901, p. 3676), making criminal a conspiracy 'either to commit any offense against the United States or to defraud the United States in any manner or for any purpose' when one or more of the conspirators do some 'act to effect the object of the conspiracy,' it is not enough that the conspiracy be directed to the attainment of some unlawful object, or to the attainment of some lawful object by unlawful means; it must be directed to the attainment of one of the objects specified. Nor is it enough that the overt act be directed to the attainment of another object; it must be directed to the attainment of the object which brings the conspiracy within the class made criminal; and when that object is attained 'the object of the conspiracy,' in the sense of the statute, is effected, and there cannot be a further overt act.

Under the public land laws of the United States, a patent becomes perfect and effective when it is executed and is recorded in the office of the recorder of the General Land Office at Washington, and no further act is essential to pass the title.

John W Lacey and John M. Waldron, for plaintiffs in error.

Timothy F. Burke, U.S. Atty., and Sylvester R. Rush, Special Asst Atty. Gen.

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

VAN DEVANTER, Circuit Judge.

Ellsworth E. Lonabaugh, Robert McPhillamey, and E. M. Holbrook were tried and convicted in the district court upon an indictment found April 3, 1907, wherein they were charged with having entered into a conspiracy to defraud the United States of the possession and title of certain of its public lands by means of fraudulent entries under the public land laws, and with having done certain acts to effect the object of the conspiracy.

Briefly stated the case made by the evidence, when interpreted most favorably for the government, was as follows: The defendants entered into the conspiracy on or before June 13, 1903. The fraud was to be effected by means of entries which were to be apparently regular, but actually fraudulent, in that they were to be secured by submitting to the local land office proofs falsely stating that the entrymen severally were making the entries solely for their own use and benefit, when in truth they were making them for the use and benefit of a corporation, and were obligated to convey the lands to it when the entries were secured; and the purpose in so falsifying the proofs was to induce the officers of the Land Department to allow the entries and to pass them to patent neither of which lawfully could be done if the proofs disclosed the true facts. The entries actually were secured by the submission of false proofs as was contemplated; the entrymen, with a single exception, then executed and delivered to the corporation warranty deeds for the lands entered by them, and the remaining entryman then likewise conveyed the lands entered by him to an individual grantee designated by the defendants.

Later the officers of the Land Department at Washington, acting upon the false proofs submitted when the entries were secured, issued to the entrymen patents for the lands (by which it is meant that the patents were duly signed, sealed, countersigned, and recorded in the office of the recorder of the General Land Office at Washington), and still later the defendants, or some of them, sought and obtained a physical delivery of the patents, and then caused them and the deeds to the corporation to be recorded in the county clerk's office in the county where the lands are situate. And after the issuance of the patents the defendants or some of them also caused the title to the land which had been conveyed to an individual grantee, as before stated, to be passed to the corporation. But the dates of the several acts here recited were such that no overt act occurred within three years of the finding of the indictment, unless the issuance of the patents by the officers of the Land Department at Washington or some of the acts subsequently done by one or more of the defendants can be regarded as such an act.

At the conclusion of the evidence, the defendants severally requested the court to direct a verdict of acquittal upon the ground that the case made by the evidence was one the prosecution of which was barred by the statute of limitation. The request was denied for reasons indicated in United States v. Lonabaugh (D.C.) 158 F. 314, exceptions were reserved, and the ruling is now assigned as error.

The statute defining the offense is Rev. St. Sec. 5440 (U.S. Comp. St. 1901, p. 3676), which reads:

'If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.'

And the statute of limitation is Rev. St. Sec. 1044 (U.S. Comp. St. 1901, p. 725), which declares:

'No person shall be prosecuted, tried or punished for any offense, not capital, except as provided in section one thousand and forty-six, unless the indictment is found, or the information is instituted, within three years next after such offense shall have been committed.'

While the gravamen of the offense is the conspiracy, the terms of section 5440 are such that there also must be an overt act to make the offense complete (Hyde v. Shine, 199 U.S. 62, 76, 25 Sup.Ct. 760, 50 L.Ed. 90); and so the period of limitation must be computed from the date of the overt act rather than the formation of the conspiracy. And where during the existence of the conspiracy there are successive overt acts, the period of limitation must be computed from the date of the last of them of which there is appropriate allegation and proof, and this although some of the earlier acts may have occurred more than three years before the indictment was found. Lorenz v. United States, 24 App.D.C. 337, 387; s.c. 196 U.S. 640, 25 Sup.Ct. 796, 49 L.Ed. 631; Ware v. United States, 84 C.C.A. 503, 154 F. 577, 12 L.R.A. (N.S.) 1053; s.c. 207 U.S. 588, 28 Sup.Ct. 255, 52 L.Ed. 353; Jones v. United States, 89 C.C.A. 303, 162 F. 417, s.c. 212 U.S. 576, 29 Sup.Ct. 685, 53 L.Ed. 657.

Passing the question of their appropriate allegation in the indictment, we proceed to consider whether any of the acts shown to have occurred within the three years can be regarded as an overt act within the meaning of section 5440. But as a preliminary to so doing it should be observed that no act can be so regarded unless it was a positive rather than a passive one, was the act of one or more of the conspirators, and was done to effect the object of the conspiracy.

Of the issuance of the patents little...