Hallock v. United States

• Decision Date: 10 February 1911
• Docket Number: 3,139.
• Citation: 185 F. 417
• Parties: HALLOCK v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

185 F. 417

HALLOCK v. UNITED STATES.

No. 3,139.

United States Court of Appeals, Eighth Circuit.

February 10, 1911

R. R Vermilion and A. G. C. Bierer (W. E. Stanley, Frank Dale Earle W. Evans, and Benj. F. Hegler, on the brief), for the plaintiff in error.

John Embry, U.S. Atty.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

D. H Hallock was convicted of suborning two young women residing in Kansas to commit perjury in making their final proofs in the commutation of their homestead entries on public lands in Oklahoma as charged in the fourth and fifth counts in the indictment. Seventy-nine assignments of error are relied on but only those will be discussed which appear to merit it. They relate to five subjects: (1) The jurisdiction of the trial court; (2) the sufficiency of the indictment and the grand jury which found it; (3) the limiting of peremptory challenges of petit jurors; (4) the evidence; (5) the instructions.

The offenses were committed in Woodward county, territory of Oklahoma. The indictment was not found nor the trial had until after that territory and the Indian Territory were admitted as the state of Oklahoma. The organic act of the territory of Oklahoma in force when the offenses were committed required their prosecution and trial in Woodward county. The District Court of the United States in which the accused was indicted and tried did not sit in Woodward county. Upon this it is contended that the accused could not lawfully be tried outside that county; that the enabling act (Act June 16, 1906, c. 3335, Sec. 14, 34 Stat. 275 (U.S. Comp. St. Supp. 1909, p. 155) Act March 4, 1907, c. 2911, 34 Stat. 1286) providing otherwise is ex post facto; and, also, that the act last mentioned gave the court jurisdiction only of such cases for prior offenses as were pending at the change to statehood. These contentions are answered by Billingsley v. United States, 101 C.C.A. 465, 178 F. 653; Pickett v. United States, 216 U.S. 456, 30 Sup.Ct. 265, 54 L.Ed. 566; Gut v. State, 9 Wall. 35, 19 L.Ed. 573.

As to the sufficiency of the indictment: The perjury of which the accused was charged with suborning was that of the two entrywomen regarding their settlement, residence, and cultivation of the lands. It is claimed that section 2291, Rev. Stat. (U.S. Comp. St. 1901, p. 1390), relating to homestead entries, governs the kind and character of proof on the commutation of such entries, and, as it merely calls for an affidavit of nonalienation by the entryman and proof of residence and cultivation by 'two credible witnesses,' the personal testimony of the entrywomen upon the subjects mentioned was not required by law, was purely voluntary, and not the subject of perjury. We do not think the section relating to homestead entries is applicable. Section 2301, Rev. Stat. (page 1406), provided that the proof of settlement and cultivation in commutation cases should be as in preemptions, and as to pre-emptions section 2263 provided that proof of settlement and improvement should 'be made to the satisfaction of the register and receiver of the land district in which such lands lie, agreeably to such rules as may be prescribed by the Secretary of the Interior. ' A regulation of the department under that law prescribed that the final proof of pre-emptors upon those matters should consist of the testimony of the claimant corroborated by that of at least two witnesses. Were this all, it would be plain that the two homestead entrywomen desiring to commute their homestead entries to cash entries were proper witnesses to testify upon the subjects in question. But in 1891 the above-mentioned section 2301 relating to commutations was amended. Act March 3, 1891, c. 561, Sec. 6, 26 Stat. 1098 (U.S. Comp. St. 1901, p. 1406). Formerly the right to commute could be exercised any time before the expiration of five years from the date of the homestead entry. The amendment provided that it could be exercised any time after 14 calendar months from the date of entry and 'upon making proof of settlement and of residence and cultivation for such period of fourteen months. ' It will be observed that specific reference to the pre-emption law for the kind of proof was omitted from the amendatory act of 1891. Because of this counsel for the accused contend that the homestead law (section 2291, Rev. Stat.) applies, but we think the reason for the omission was probably because the pre-emption law was repealed by the same act that amended the commutation law. Act March 3, 1891, c. 561, Secs. 4, 6, 26 Stat. 1097, 1098 (U.S. Comp. St. 1901, pp. 1381, 1406). We can find no indication of a purpose to adopt the particular method of making proof required in homestead cases. The law says an entry may be commuted 'upon making proof of settlement and of residence and cultivation. ' No provision appearing in the law the matter of witnesses to make the proof would properly be the subject of a departmental regulation, and, in the absence of one, the officials of the Land Office would be fully justified in following the practice that formerly obtained. An entryman would appear to be a competent witness of his own settlement, residence, and cultivation, and his false testimony respecting the same the subject of perjury.

A statute of Oklahoma Territory in force when the offenses were committed required a grand jury to be composed of not less than 12 nor more than 16 members and the concurrence of at least 12 in the finding of an indictment. The act of Congress applying to the federal procedure in the states fixes the number at not less than 16 nor more than 23, and requires a like concurrence for an indictment. The grand jury which indicted the accused was drawn and impaneled under the act of Congress after the admission of Oklahoma as a state, and was of 19 members. It is claimed the act of Congress as to offenses committed before statehood is ex post facto, and the constitutional rights of the accused were therefore violated. Various tests have been given for determining whether a statute is ex post facto as applied to an act committed prior to its passage. Does it make criminal that which was innocent, or aggravate the crime, or change and make the punishment greater, or alter the legal rules of evidence and lessen the amount or measure necessary to convict? Mallett v. North Carolina, 181 U.S. 589, 21 Sup.Ct 730, 45 L.Ed. 1015. Does it 'take from an accused any right that was regarded, at the time of the adoption of the Constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him'? Thompson v. Utah, 170 U.S. 343, 18 Sup.Ct. 620, 42 L.Ed. 1061. In its relation to the offense or its consequences does it alter the situation of a party to his disadvantage? United States v. Hall, 2 Wash. (C.C.) 366, Fed. Cas. No. 15,285; Kring v. Missouri, 107 U.S. 221, 228, 2 Sup.Ct. 443, 27 L.Ed. 506. But as was held in Gibson v. Mississippi, 162 U.S. 565, 590, 16 Sup.Ct. 904, 40 L.Ed. 1075, the inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried in all respects by the law in force when the crime charged was committed. The mode of trial is always under legislative control, subject only to the condition that the Legislature may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments. For example, the constitutional prohibition against ex post facto laws has been held not to apply to state laws which authorize an appeal by the state to the Supreme Court of the state from a decision of an inferior appellate court in favor of a defendant (Mallett v. North Carolina, 181 U.S. 589, 21 Sup.Ct. 730, 45 L.Ed. 1015); which make competent evidence of a disputed writing not competent before (Thompson v. Missouri, 171 U.S. 380, 18 Sup.Ct. 922, 43 L.Ed. 204); which enlarge the class of persons competent to testify in criminal cases (Hopt v. Utah, 110 U.S. 574, 4 Sup.Ct. 202, 28 L.Ed. 262); prescribing additional qualifications for jury service (Gibson v. Mississippi, 162 U.S. 565, 16 Sup.Ct. 904, 40 L.Ed. 1075); making a change in the organization of the Supreme Court of a state so that instead of a hearing before a full court of five justices the hearing is before a division of the court composed of three out of seven justices (Duncan v. Missouri, 152 U.S. 377, 14 Sup.Ct. 570, 38 L.Ed. 485); changing the place of trial from one county to another in the same district or to another district (Gut v. State, 9 Wall. 35, 19 L.Ed. 573); changing the manner of summoning and making up the jury (Perry v. Commonwealth, 3 Grat. (Va.) 632); giving the government a right of peremptory challenge of jurors it did not have when the crime was committed (Walston v. Commonwealth, 16 B.Mon. (Ky.) 15; State v. Ryan, 13 Minn. 370 (Gil. 343)); reducing the number of peremptory challenges allowed defendants in trials of felonies, not capital (South v. State, 86 Ala. 617, 6 So. 52); reducing the number of grand jurors (State v. Ah Jim, 9 Mont. 167, 23 P. 76); preventing a defendant from taking advantage of variances in an indictment which are not prejudicial to him (Commonwealth v. Hall, 97 Mass. 570); authorizing an appellate court on writ of error to render such judgment as should have been rendered (Jacquins v. Commonwealth, 9 Cush. (Mass.) 279); making the court the judge of the law, whereas before the jury were (Marion v. State, 20 Neb. 233, 29 N.W. 911, 57 Am.Rep. 825); depriving a defendant of a right of change of venue from an examining magistrate (People v. McDonald, 5 Wyo. 526, 42 P. 15, 29 L.R.A. 834); changing practice from indictment to...