In re Wood

• Decision Date: 29 June 1899
• Docket Number: 4,460.
• Citation: 95 F. 288
• Parties: In re WOOD.
• Court: U.S. District Court — District of Oregon

95 F. 288

In re WOOD.

No. 4,460.

United States District Court, D. Oregon.

June 29, 1899

John H Hall, U.S. Atty.

Charles J. Schnabel, for defendant.

BELLINGER District Judge.

This is a proceeding for the removal of John Wood to the district of Washington, upon an indictment, found in that district charging him with subordination of perjury in procuring one James M. Perry to make, before the register of the public land office, a certain false oath, which false oath consisted of a sworn statement in writing, required under the provisions of the act of congress for the sale of timber lands in the states of Oregon, Nevada, California, and Washington Territory, to the effect that the said Perry had made a personal examination of certain public lands of the United States, when in truth and in fact he had not been upon or examined said lands, and did not know at the time whether the affidavit so made was true or false. The application for removal was heard by Commissioner Deady, who, without other evidence than the certified copy of the indictment found in the district of Washington, ordered the defendant committed to await an order of removal. Prior to this proceeding a like petition was filed by the attorney for the United States before E. D. McKee, also commissioner for this district before whom a hearing was had, and the testimony of witnesses taken. The witnesses examined were James M. Perry (the party whose false affidavit, it is alleged, was procured by Wood) and the wife of said Perry. At this hearing no copy of the indictment was presented.

Upon consideration of this testimony, Commissioner McKee ordered the discharge of the defendant.

Upon this application for removal, two questions are presented: First, as to the effect of the discharge by Commissioner McKee; and, second, as to the sufficiency of the showing made to authorize an order of removal.

As to the first question, I am of the opinion that the action of the commissioner in an application of this kind, upon the full consideration of the testimony offered, and especially where such testimony is that upon which the indictment is found, should be final. It should not be open to the government to file repeated petitions before different commissioners upon substantially the same state of facts. If, for any reason, the government was unable to obtain the testimony of witnesses, and its case was therefore not fully presented, this would afford ground for a rehearing before the commissioner having cognizance of the matter. Where the hearing has been full and complete, the action of one has been arbitrary and in manifest disregard of his duty, ought not to be made the subject of review before a second commissioner.

An agreed statement of the testimony of Perry and his wife before Commissioner McKee was made on this hearing, so that I am enabled to know what the facts are upon which the indictment in the district of Washington was found, and upon which the government expects to secure a conviction of the defendant. This testimony, so far as it relates to the crime charged in the petition filed as the ground for removal consists of the statement by Perry and wife that Wood requested the former to go to Ellensburg, and make an application and filing to purchase upon the land in question. This is the testimony relied upon to prove that Wood instigated Perry to make the alleged false oath that he had made a personal examination of the land filed on. There was no testimony tending to prove that Wood procured or advised the making of the alleged false averment contained in the affidavit, or that he procured the affidavit to be filed. These are mere inferences of fact deduced from the fact that Wood instigated the application to purchase, since such an affidavit is required when an application to purchase is made. Such...