Berry v. United States
| Decision Date | 07 April 1919 |
| Docket Number | 3257. |
| Citation | 259 F. 203 |
| Parties | BERRY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Duke Stone, of Los Angeles, Cal., for plaintiff in error.
Robert O'Connor, U.S. Atty., and W. Fleet Palmer, Sp. Asst. U.S Atty., both of Los Angeles, Cal.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
GILBERT Circuit Judge (after stating the facts as above).
The plaintiff in error moved in arrest of judgment in the court below, on the ground that the indictment does not charge facts sufficient to constitute an offense against the laws of the United States. The same objection to the indictment is presented in this court, and it is now argued that facts are not set forth in the indictment to show that the evidence alleged to have been falsely given was material to the issues or the facts, or that the affidavit was received, accepted or acted upon as the affidavit required by law, and that the indictment is fatally defective, for the reason that the affidavit states that there was expended for reclamation of said land $160 for clearing and breaking, whereas the assigning portion charges the falsity of the affidavit to consist in the fact that no clearing or breaking had been done.
By failing to demur to the indictment the plaintiff in error waived all objections thereto, except the objection that some substantial element of the crime was omitted therefrom. Dunbar v. United States, 156 U.S. 185, 192, 15 Sup.Ct. 325, 39 L.Ed. 390; Boren v. United States, 144 F. 801, 75 C.C.A. 531; Oesting v. United States, 234 F. 304, 148 C.C.A. 206. The materiality of a perjured statement may be made to appear either by an allegation of its materiality (Markham v. United States, 160 U.S 325, 16 Sup.Ct. 288, 40 L.Ed. 441), or by pleading facts which of themselves show its materiality (2 Bishop, New Crim. Proc. Sec. 921; Ammerman v. United States, 185 F. 1, 108 C.C.A. 1). The materiality here appears from the facts pleaded. It is alleged that the affidavit was made and filed with the register 'in and concerning a desert land entry then pending in the said United States land office. ' The statute required proof of the expenditure of money on necessary improvements and proof of the manner in which it was expended, and thereby made such proof material. Markham v. United States, 160 U.S. 319, 320, 16 Sup.Ct. 288, 40 L.Ed. 441; Hendricks v. United States, 223 U.S. 178, 32 Sup.Ct. 313, 56 L.Ed. 394; United States v....
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...States, 5 Cir., 100 F.2d 474; Gay v. United States, 5 Cir., 12 F.2d 433; Karger v. United States, 5 Cir., 46 F.2d 302; Berry v. United States, 9 Cir., 259 F. 203; Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed.......
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...States, 1895, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; United States v. Carll, 1881, 105 U.S. 611, 26 L.Ed. 1135; Berry v. United States, 9 Cir., 1919, 259 F. 203. A demurrer to the evidence "`. . . is defined by the best text writers to be a proceeding by which the court in which the acti......
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Travis v. United States, 2269.
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