Perrin v. United States

• Decision Date: 01 March 1909
• Docket Number: 1,541.
• Citation: 169 F. 17
• Parties: PERRIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

169 F. 17

PERRIN v. UNITED STATES.

No. 1,541.

United States Court of Appeals, Ninth Circuit.

March 1, 1909

Peter F. Dunne and Barclay Henley, for plaintiff in error.

Robt. T. Devlin, U.S. Atty., and A. P. Black, Asst. U.S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The plaintiff in error was indicted in the court below with John A. Benson for a conspiracy to defraud the United States of the title to and possession of large tracts of land containing twelve thousand (12,000) acres, situated in the county of Tehama, in the state of California. To this indictment the defendants interposed demurrers on the grounds, among other things, that the indictment did not state facts sufficient to constitute an offense against the laws of the United States, and on the ground that the court was without jurisdiction for the reason that the alleged offenses set out in the indictment were exclusively a matter of state cognizance. The demurrers were overruled, and the defendants pleaded not guilty; they were tried and convicted and a judgment entered accordingly. For a review of this judgment the defendants have prosecuted separate writs of error.

The first question to be determined is the sufficiency of the indictment. The indictment contains two counts. The first count charges that John A. Benson and the plaintiff in error on the 31st day of October, 1903, in the city and county of San Francisco, state of California, conspired together to defraud the United States of the title to and possession of large tracts of land of great value, containing twelve thousand (12,000) acres, situated in the county of Tehama state of California, and located more particularly in townships twenty-four (24) and twenty-five (25) north, ranges eight (8) and nine (9) west, Mt. Diablo base and meridian which were lands of the United States open to and to be opened to selection in lieu of lands included and to be included within the limits of forest reservations established and to be established under the laws of the United States in the state of California, by means of false, fraudulent, and fictitious applications and affidavits to purchase, and false, fraudulent, and fictitious entries of said lands, which said false, fraudulent, and fictitious applications, affidavits, and entries were to be filed in the California state land office, at Sacramento, Cal., and by reason of which said false, fraudulent, and fictitious applications and affidavits to purchase and entries the state of California was to demand of the United States the lands covered by and mentioned in the said applications and affidavits in lieu of other lands in the state of California which had been heretofore included in forest reservations established in said state of California by the United States government.

The indictment further charges that John A. Benson had theretofore caused the lands included in the forest reservations in lieu of which the state of California was to demand the lands applied for by the defendants to be covered by false, fraudulent, and fictitious applications and affidavits to purchase from the said state of California, and by the pretended relinquishment of said lands, so included in the said forest reservations, by the said John A. Benson, the state of California was apparently entitled to select other lands in lieu thereof.

The indictment further charges that according to and by reason of said conspiracy, combination, confederation, and agreement, and to the effect and object of said conspiracy, the defendants, at the city and county of San Francisco, state and Northern district of California, on the 31st day of October, 1903, entered into an agreement in writing, in the words and figures and substance following, to wit:

'This agreement, made and entered into this thirty-first day of October, 1903, between Edward B. Perrin, of Williams, Arizona, the party of the first part, and John A. Benson, of the city and county of San Francisco, state of California, the party of the second part, witnesseth: That the said party of the first part employs the said party of the second part to secure for him, by means of state indemnity school land location or in other legal manner the following described land, to wit: As per plat attached hereto-- containing twelve thousand (12,000) acres.

'That the said party of the second part agrees to file the applications of the nominees of the said party of the first part for said land in the state land office, and to have said land properly selected in the United States land office, and certified to the state by the Secretary of the Interior; and, thereafter, as soon as the same can lawfully be done, to have a patent for the said land issued to the said party or his assigns-- provided that, meanwhile, the full payment for said land has been made by said party of the first part, in accordance with the terms of this agreement.

'In consideration hereof the said party agrees to pay the said second party the sum of four & 50/100 ($4.50) dollars per acre for said land, (including 500 an acre for location fee in installments as follows, to wit: Two and 50/100 ($2.50) dollars per acre cash, and two ($2.00) dollars per acre when the application for the above described land has been approved by the state Surveyor General, which in no case shall be less than three months. The party of the first part is to have the privilege of paying the second installment within ninety days from November 18, 1903, with forest reserve script at $4.50 per acre-- and party of the second part is also to pay the state of California, the sum of one dollar and twenty-five cents per acre when the same becomes due.

'If the party of the first part shall fail to obtain a good and sufficient title to said land or any part thereof, under the location to be made as aforesaid, or in some other legal manner within three years from date hereof, then the said second party will refund to the said party of the first part, any money that he, the said party of the second part, may have received on account hereof, in proportion to the quantity for which title may fail. It is agreed that there shall be no further location charges other than the $6,000 already paid, on account of lands, whether located within forest reserve script or otherwise, to be selected by the party of the first part in townships 24 and 25 north, ranges 8 and 9 West, Mount Diablo meridian.'

The indictment charges that by the word 'nominees,' used in the aforesaid agreement, was meant the name of the fictitious persons whose false, fraudulent, and fictitious applications for the said land in said agreement mentioned were to be filed in the state land office, at Sacramento, Cal., by the said John A. Benson, and the said agreement was by the consent of both parties thereto changed on or about the 1st day of November, 1903, so that the said 'nominees' were to appear as the nominees of the party of the second part.

It is further charged that for the purpose of carrying out the object of the conspiracy, combination, federation, and agreement the plaintiff in error on the 31st day of October, 1903, paid the said John A. Benson the sum of thirty thousand ($30,000) dollars, which was received by the said John A. Benson on account of the foregoing agreement.

The indictment further charges that the plaintiff in error on or about the 1st day of November, 1903, caused one Charles P. Snell to write his name to a large number of blank nonmineral affidavits aggregating one hundred (100), more or less, which said affidavits so signed in blank by the said Snell were taken possession of by the plaintiff in error, and were afterwards by him turned over to the said John A. Benson to be fraudulently filled in and used as true and genuine affidavits, and filed along with the false, fraudulent, and fictitious applications and affidavits and entries aforesaid; and the said John A. Benson caused the said affidavits so signed in blank by said Charles P. Snell to be filled in and filed as the true and genuine affidavits of the said Charles P. Snell in connection with the aforesaid false and fictitious applications and entries.

It is further charged that on November 4, 1903, the said John A. Benson, to effect the object of the said conspiracy, caused to be filed in the state land office, at Sacramento, Cal., application No. 13,562, in the name of R. M. White, 810 Mission street, San Francisco, for the purchase of certain lands in township 24 north, range 8 west, Mt. Diablo base and meridian, which application was false, feigned, fraudulent, and fictitious, and then and there known to the said defendants to be false, feigned, fraudulent, and fictitious, in this: That the alleged R. M. White had not in fact made any application to purchase, and did not in fact live at 810 Mission street, San Francisco, or at any other place, and did not in fact exist.

The indictment further charges that on November 4th, in the year 1903, the said John A. Benson, to effect the object of the conspiracy, caused to be filed in the state land office, at Sacramento, Cal., application No. 13,563, in the name of John S. Forsythe, 407 Castro street, San Francisco, for the purchase of certain lands in township 24 north, range 8 west, Mt. Diablo base and meridian, which said application was false, feigned, fraudulent, and fictitious, and then and there known to the said defendants to be false, feigned, fraudulent, and fictitious, in this: that the alleged John S. Forsythe had not in fact made any application to purchase, and that he did not in fact live at 407 Castor street, San Francisco, or at any other place, and did not in fact exist.

In the second count of the indictment the conspiracy and combination...