Haynes v. United States

• Decision Date: 16 April 1900
• Docket Number: 1,251.
• Citation: 101 F. 817
• Parties: HAYNES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F. 817

HAYNES et al. v. UNITED STATES.

No. 1,251.

United States Court of Appeals, Eighth Circuit.

April 16, 1900

James Haynes, William Johnson, William F. Gilliland, and Wilson Kountz, the plaintiffs in error, and one Nicholas Q Patterson, since deceased, were indicted by the grand jury of the district court of the Third judicial district of the territory of New Mexico for violation of the provisions of section 5508, Rev. St. U.S., and section 3 of chapter 149 of the act of February 25, 1885 (23 Stat. 321). There were two indictments against the parties, each containing three counts. On motion of the United States the two indictments were consolidated, for the reasons that both related to the same transaction and were based on the same evidence. Upon trial the jury found the plaintiffs in error guilty on all the counts in the two indictments, the verdict being a general verdict of guilty as charged in each indictment. A motion in arrest of judgment was filed and overruled. Thereupon the court sentenced the defendants to pay a fine of $100 and all costs of the prosecution, and that they be confined in the territorial penitentiary of New Mexico at hard labor for the period of one year. An appeal was taken to the supreme court of the territory of New Mexico. A bill of exceptions had been filed in the district court. In the territorial supreme court a motion was filed on behalf of the United States to strike out the bill of exceptions, because it was signed and sealed after the expiration of the time within which the court had power to do so. This motion was sustained by the supreme court, and the bill of exceptions stricken from the records. The record sent to this court does not contain any bill of exceptions. The final hearing of the supreme court of the territory affirmed the judgment of the court below, and the cause was removed to this court by writ of error.

S. B Newcomb (J. F. Bonham, on the brief), for plaintiffs in error.

Edward A. Rozier, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above.

As there is no bill of exceptions before us, we are confined to those questions which appear in the record. There was no error in consolidating the two indictments, as all the counts in each of the indictments were based on cognate statutes and relate to the same transaction. Logan v. U.S., 144 U.S. 297, 12 Sup.Ct. 617, 36 L.Ed. 429; Porter v U.S. 33 C.C.A. 652, 91 F. 494; Rev. St. Sec. 1024. Moreover, the defendants interposed no objection to the consolidation when made. 'Having gone to trial without objection on the indictment as consolidated under the last order of the court, it was not open to any of them to take the objection for the first time after judgment. ' Logan v. U.S., 144 U.S. 263, 297, 12 Sup.Ct. 617, 36 L.Ed. 429.

Indictment No. 1,208 is drawn under the provisions of section 3 of the act of congress approved February 25, 1885 (23 Stat. 321). That section reads as follows:

'Sec. 3. That no person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent, or obstruct free passage or transit over or through the public lands: provided, this section shall not be held to affect the right or title of persons, who have gone upon, improved or occupied said lands under the land laws of the United States, claiming title thereto, in good faith.'

The first count is based upon that part of the statute prohibiting, by force, threats, and intimidation, any person from peaceably entering upon and establishing a settlement upon a tract of public land.

It follows the language of the statute, and describes the unlawful acts of defendants by charging that the force, threats, and intimidations were by the unlawful use of guns, pistols, blows, ropes, and tar. It describes with particularity the part of land which Gifford was prevented by the unlawful acts of defendants from entering upon and establishing a settlement upon, and also charges that the land was then public land of the United States, subject to entry under the public land laws of the United States. This clearly furnished to the accused full information as to all acts which they are charged to have committed, and enabled them properly to prepare for their defense. The second and third counts of this indictment, while based upon different parts of that section, are equally full and comprehensive, and are not subject to the objections raised by the plaintiffs in error.

The indictment No. 1,209 is drawn under section 5508 of the Revised Statutes of the United States. The first count in that indictment fails to describe any of the acts which constituted the conspiracy. It does not charge what lands Gifford was prevented from entering, nor that they were public lands. This count is therefore clearly bad, and no conviction thereunder can be sustained. But the second and third counts of that indictment set out fully all the acts which the defendants conspired to do to prevent Gifford, who was alleged in the indictment to be a citizen of the United States, from the free exercise and enjoyment of a certain right and privilege secured to him by the laws of the United States; that is to say, the right to then and there peaceably enter upon, prospect for minerals, initiate, locate establish, and perfect a mining claim upon the public lands of the United States under the public land laws of the United States,-- describing the...