Nurnberger v. United States

• Decision Date: 28 October 1907
• Docket Number: 2,527.
• Citation: Nurnberger v. United States, 156 F. 721 (8th Cir. 1907)
• Parties: NURNBERGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

156 F. 721

NURNBERGER v. UNITED STATES.

No. 2,527.

United States Court of Appeals, Eighth Circuit.

October 28, 1907

Hook Circuit Judge, dissenting.

Charles E. Wolfe and W. S. Lauder, for plaintiff in error.

B. D Townsend, Asst. U.S. Atty. (Patrick H. Rourke, U.S. Atty., on the brief).

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

The plaintiff in error (hereinafter for convenience designated the defendant) was a Union soldier who served through the Civil War, and at the time of the indictment and trial he was 67 or 68 years old. After the War he lived at Bowling Green in the state of Ohio. In 1879 he moved to Richland county, N.D., where he acquired lands from the government under the homestead, timber culture, and pre-emption laws. In 1900 he visited Ward county, N.D., where one of his sons had located in business. There was a large amount of public land in that vicinity where Minot, the local land office, is located. In the spring of 1900 he went to Bowling Green, Ohio, to visit his wife, who had been there some months on account of sickness. While there he met a number of his former comrades of the army, and they discussed the subject of locating homesteads in said Ward county. He obtained a power of attorney from a number of these soldiers to make entries for them under the homestead laws. Being advised that such powers of attorney were not permissible for such purpose, he consulted with an attorney respecting the legality of contracts with soldiers concerning lands to be acquired under the homestead laws. The trend of this advice was that he could make contracts with them under which he could furnish the money to defray their expenses in making such entries and the necessary improvements on the lands, and that they might or might not, at their pleasure, convey the lands to him after they had obtained the title; but he could not make a contract that they should enter the lands for his use and benefit. He took several parties of these soldiers and the widows of deceased soldiers out to Ward county, where they made affidavits of application for such lands and effected such entries. He paid all the expenses of these trips, and for the entries, and constructed what are called 'shacks' on the lands.

In the fall of 1903 he went to Ohio and organized the last party, composed of 12 widows of old soldiers, who made the entries in question. A form of contract was drawn up by a Mr. Comstock, a lawyer and comrade of the defendant, a resident of the locality in Ohio where these homesteaders lived, to be signed by them and the defendant, the substance of which was that the applicant agreed to go to the United States land office at Minot, N.D., and make due and legal entry upon lands selected for them by the defendant under the provisions of the homestead laws, and that the applicant would duly appear and make final proof and perfect title to the land, and when the title was perfected they agreed to sell the land to the defendant for the sum of $200, plus the expenses of one trip to the land office and return to Ohio; the $200 to be paid upon delivery of the deed. The defendant was to select and locate the land and make the improvements on the same before final proofs; the locator agreeing that until such deed was delivered as aforesaid, the defendant should have a prior lien upon the land for improvements so made and for money advanced for traveling expenses. This contract, it is conceded, was nonenforceable. The tenth count of the indictment was based upon an entry made by one Hall in 1902, under a claimed parol understanding with the defendant.

The defendant was indicted May 29, 1905, for subornation of perjury in procuring said entrymen of 1903 to make false affidavits before the register of the land office to secure said locations. The indictment contained 13 counts. Verdicts of guilty were returned on counts numbered 2, 3, 6, 7, 8, 9, and 10, and he was acquitted on the other counts. He was sentenced to the South Dakota penitentiary for a term of one year and to pay a fine of $300.

The first error assigned goes to the sufficiency of the indictment, based on the following objections: (1) That the indictment fails to charge that the land described at the times when the affidavits in question were made were public lands of the United States, over which the register and receiver of the land office at Minot had jurisdiction; (2) that the allegation 'subject to entry at said land office' if referable to the lands at all is a mere conclusion of law; and (3) the indictment fails to state a case in which any oath was required or permitted to be administered.

The allegations of the indictment in the particulars assailed, common to all the counts, after laying the venue, are that the defendant in said district within the jurisdiction of the court:

'Then and there unlawfully did willfully and corruptly suborn, instigate and procure one Charles S. Ely to appear in person before the register and receiver of the United States land office at Minot, in the district aforesaid, and then and there, before T. E. Fox, then and there the receiver of the said land office, to make and subscribe, before him, the said T. E. Fox, receiver as aforesaid, a certain oath and affidavit in writing then and there required by the laws of the said United States, in support of a certain application in writing of him, the said Charles S. Ely, then and there made to the register of the said land office; that is to say, a certain application in writing to enter, under the homestead laws of the United States, subject to entry at the said land office (here is set out a description of the land), and by such oath and affidavit, so made in support of said application to enter the said lands, falsely to depose and swear, among other things in substance, and to the effect,' etc.

This is followed by a statement of the contents of the affidavit made by the applicant, with allegations as to the falsity of the matters sworn to, the corrupt procurement thereof by the defendant, with averment of the authority of said Fox to administer said oath.

The application in writing, the allegation clearly enough discloses, was to make entry of homestead lands, specifically described, under the homestead laws of the United States subject to entry at the United States land office at Minot, N.D. The clear intendment is that the lands were public lands, and as such were at the time subject to entry at said United States land office. The allegations in this respect were quite as full and specific as those contained in the indictment in Stearns v. United States, 152 F. 900, 82 C.C.A. 48, held by this court to be sufficient after verdict. It was there said, in substance, that it is common knowledge that public lands, like post office sites, military reservations, and the like, are not within the ordinary meaning of public lands of the United States and are not subject to entry or sale for any purpose, and therefore they are never understood to be in contemplation when speaking of entries of lands for homestead purposes; that in respect of lands bearing mineral, though nonapplicable to homestead entry, persons may nevertheless compass a fraud upon the government by obtaining possession of them under fraudulent affidavits.

The essential requirement of the law is that the charging part of the indictment shall sufficiently advise the accused, in advance of the trial, of the nature and character of the offense he may be required to come prepared to meet. When it does this, although it may be inartificially drawn or defective in matters of form, yet, if the defendant go to trial without interposing a motion to quash or demurrer, the statute (section 1025, Rev. St. U.S. (U.S. Comp. St. 1901, p. 720)) interposes, which declares that:

'No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.'

So Mr. Justice Brewer, in Dunbar v. United States, 156 U.S. 185, 192, 15 Sup.Ct. 325, 328, 39 L.Ed. 390, said: 'While it may be true that a defendant by waiting until that time (after verdict) does not waive the objection that some substantial element of the crime is omitted, yet he does waive all objections which run to the mere form in which the various elements of the crime are stated, or the fact that the indictment is inartificially drawn. If, for instance, the description of the property does not so clearly identify it as to enable him to prepare his defense, he should raise the question by some preliminary motion, or perhaps by a demand for a bill of particulars; otherwise it may properly be assumed as against him that he is fully informed of the precise property in respect to which he is charged to have violated the law.'

The defendant did not, either by motion to quash or demurrer, invite the court's attention to any defect in the indictment; but on the trial objected to the introduction of any evidence by the government because of the claimed defects. This practice is not recognized in criminal procedure. United States v. Harmon (D.C.) 45 F. 414.

The rigors of the ancient common law in exacting much particularization in the description of the offense of perjury and subornation of perjury have been greatly modified by sections 5396 and 5397, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3655).

The allegation of the indictment as to the authority of the officer to administer the oath that 'he, the said T. E Fox, then and there being such receiver as...