Lillis v. United States

• Decision Date: 02 October 1911
• Docket Number: 1,715.
• Citation: 190 F. 530
• Parties: LILLIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

190 F. 530

LILLIS v. UNITED STATES.

No. 1,715.

United States Court of Appeals, Ninth Circuit.

October 2, 1911

H. H Welsh, E. O. Miller, Sutherland & Barbour, and P. F. Dunne for plaintiff in error.

Oscar Lawler, Asst. Atty. Gen., A. I. McCormick, U.S. Atty., and Frank Stewart, Asst. U.S. Atty., for the United States.

Before GILBERT and MORROW, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This is a writ of error from a judgment of conviction upon the charge of maintaining an unlawful inclosure of, and hindering and impeding free passage upon, public lands. The record contains 100 assignments of error, but in the arguments of counsel and the presentation of the cause here in reality but two are relied upon for reversal. These pertain, first, to the admission of certain evidence over objection; and, second, to the sufficiency of the indictment, which was challenged for the first time by motion in arrest of judgment. The indictment was returned November 5, 1906.

Evidence was introduced tending to show that beginning with the early part of 1901 and embracing a period of about two years the defendant constructed a fence of posts and wires, commencing at the southwest corner of township 15 S. range 13E., and running thence east 5 1/2 miles, thence meandering practically about the section boundaries, in a southeasterly direction, to the southwest corner of township 16 S., range 15 E., thence south three miles, thence southeasterly meandering the section boundaries, to the southwest corner of section 27, township 17 S., range 15 E., thence south 3 1/2 miles, thence west 2 miles, thence in a southwesterly direction, meandering the quarter section boundaries, to the southeast corner of section 24, township 18 S., range 14 E thence west 1 1/2 miles, and thence south to termination; also another line of fence beginning at the southeast corner of section 33, township 18 S., range 14 E., and running thence west about 5 1/2 miles, thence northwesterly 1/2 mile to termination near the center of section 34, township 18 S., range 13 E., Mount Diablo base and meridian, state of California, both stretches covering a distance of from 40 to 45 miles; that thereafter Lillis maintained said fences down to the time of the finding of the indictment; that such fencing, conjoined with natural barriers extending a short distance on the south and for 18 miles or more on the west, constituted an inclosure which comprised within its boundaries approximately 32,760 acres of the public lands, the property of the general government, and that said fences prevented and obstructed free passage and transit to and from the said public lands. In connection with these proofs, and as part of the government's case, the government was permitted, over the objection of the defendant, to introduce evidence tending to show that the defendant by himself and through his foreman-- principally through the latter-- procured pretended settlers to homestead certain tracts of the government land situated within the boundaries of the supposed inclosure; that defendant defrayed the expenses of the settlers in filing and making the requisite proofs at the land office, and in some instances paid the settler something beyond these expenses; that in some cases he built cabins for the claimants to live in, and inferentially that he had entered into agreements with the homesteaders whereby he was to obtain the title to the claims eventually after patents had issued; that in other cases he arranged to pay the expenses of homesteaders for commutation and cash purchase from the government, and, again, that he acquired other tracts of the public lands lying within the confines of said inclosure by the use of certain lieu land scrip, thus indicating a purpose on his part of acquiring from the government, either directly or indirectly, much of the public lands under the cover of this alleged inclosure. Further evidence was admitted to the effect that the accused had signified to his foreman that he desired to procure certain of such lands, and instructed such foreman to keep him advised and to assist him in that purpose.

The specific and strenuous objection to this testimony is that it, or such part as relates to the homestead entries, tends to establish the guilt of the defendant of a wholly different and distinct offense from that for which he is on trial, and, further, that it is entirely irrelevant and beside the issues of the case, having no tendency whatever to support any ingredient of the crime of unlawfully inclosing or impeding free access to the public lands. In this relation it is urged that intent is not an element of the offense, nor necessary to be shown in order to make out the charge.

On the other hand, counsel for the government insist that the testimony complained of is pertinent and relevant for two reasons: First, as tending to show knowledge on the part of the accused that public lands were situated within the inclosure, or in such relation to the fencing that free access thereto would be impeded; and, second, as tending to show with what intent and purpose he maintained the fencing.

It must be predicated of the defense that the effort was to show that the purpose on the part of the defendant in maintaining the fences was not to inclose any lands whatever, but as a barrier only to keep his stock from ranging back to the locality from which they were driven, or to certain swamps, and from trespassing upon the lands of private owners living to the east and south of defendant's holdings. The premise is abundantly supported by the testimony of Mr. Lillis. He says:

'I use that land for cattle grazing, horses. I have not always had stock on the land since I owned it. I have had and now have stock upon the land. * * * When I put the cattle on the land in the fall of 1901, I had very great trouble about keeping them on my ranch. When you move cattle to a new place, they want to go back home; and another cause in that region was on

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