Peters v. United States

• Decision Date: 17 August 1893
• Citation: 1893 OK 27,2 Okla. 116,33 P. 1031
• Parties: CLAY PETERS v. UNITED STATES.
• Court: Oklahoma Supreme Court

1893 OK 27

33 P. 1031

2 Okla. 116

CLAY PETERS v. UNITED STATES.^*

Supreme Court of Oklahoma

Decided: August 17, 1893

Error from District Court of Oklahoma County.

Syllabus

¶0 1. Alleged errors of the trial court will not be reviewed on appeal unless presented to the trial court for review by motion for new trial, except that the sufficiency of the charge to constitute a public offense or the jurisdiction of the court, may be questioned for the first time in this court.

2. Errors committed by the trial court will not be reviewed on appeal unless presented to the trial court for review by motion for new trial, unless they go to the sufficiency of the charge to constitute a public offense or jurisdiction of the court.

3. Under § 5392 R. S. U.S. the crime of perjury is committed by a person who, having taken an oath before a register or receiver, testifies falsely touching a material matter in issue.

4. The register or receiver of a United States land office is authorized to administer oaths in contest proceedings.

5. The rules and regulations established by the heads of executive departments, with the approval of the president, in execution of, or supplementary to, but not in conflict with, statutes defining their powers or conferring rights upon others, have the force and effect of laws.

6. The court will take judicial knowledge of the fact that the land described in the indictment is within the Oklahoma City land district, and that the register and receiver of the land office for such district have jurisdiction over any proceeding or contest having for its object and purpose the cancellation of a homestead entry for said land.

7. An allegation in an indictment that, "In the United States land office at Oklahoma City, in said county, of which said office, John H. Burford was then and there register, and John C. Delaney was then and there receiver, a certain land contest and cause was pending and then and there came on to be tried," is equivalent to an allegation that the contest came on to be heard in the land office before the register and receiver.

8. The provision of the territorial statute providing for a change of judge is not in harmony with our Organic Act, and no change of judge can be had in either a federal or territorial criminal case.

9. It is not error for a trial court to overrule an application for a change of venue from the county where the affidavits presented in support of such motion do not set forth the facts, which in the opinion of the witness would operate to prevent a fair trial in the county in which the indictment is found.

10. Presumptions are in favor of the regularity and correctness of the proceedings and rulings of the court below, and this court will presume, in the absence of part of the instructions given, that the instructions as given covered all the questions of law necessary to inform the jury on every question involved in the trial of the cause, and that they embrace all the questions presented in the instructions refused.

11. The courts take judicial knowledge of the rules and regulations of the general land office, and such rules need not be pleaded or proven.

12. Rulings complained of must be made apparent by the record presented to this court, and the abstract must embrace enough of the record so fully present all the alleged errors.

BURFORD, J.

¶1 The defendant, Clay Peters, was prosecuted in the district court of Oklahoma county on an indictment for perjury, alleged to have been committed in the United States land office at Oklahoma City, tried by jury, a verdict of guilty returned, and judgment rendered on the verdict assessing his punishment at a fine of one dollar and imprisonment at hard labor for a term of four years in the penitentiary at Stillwater, Minnesota.

¶2 The defendant appealed from this judgment and assigned twenty-four alleged errors, for which he asks a reversal of the judgment. Several of the assignments of error are duplicated and a number of them are only proper subjects for a motion for new trial in the court below, and are not available as objections in this court unless embraced in the motion for new trial.

¶3 We have repeatedly held that errors committed by the trial court during the progress of the trial are not available in this court unless presented to the trial court for review by motion for new trial, and that an assignment of error that the court erred in overruling the motion for new trial, saves all the questions properly embraced in the motion for new trial, and the practice is so well settled and established that it would seem there is no excuse for ignoring or violating this well known rule.

¶4 The first, second, third, fourth, fifth, sixth, seventh, eighteenth and twenty-fourth assignments of error are all embraced in the second and present but one single question, viz.: the sufficiency of the averments in the indictment to constitute a public offense.

¶5 The indictment is in two counts and the defendant was convicted upon the second; hence it is unnecessary to consider the first.

¶6 The second count charges, omitting the caption, as follows:

"The grand jurors of the United States of America, having been first duly empaneled, sworn and charged to enquire of offenses against the laws of the United States committed within said county, in said Territory of Oklahoma, upon their oaths aforesaid, in the name and by the authority of the United States of America, do find and present that at and within said Oklahoma county, in said territory, on the 7th day of January, in the year of our Lord one thousand eight hundred and ninety-one, in the United States hind office at Oklahoma City, in said county, of which said land office John H. Burford was then and there register and John C. Delaney was then and there the receiver, a certain land contest and cause was pending, and then and there came to be tried, wherein one Andrew J. Brown sought to have the homestead entry of one Clay Peters for the northwest quarter of section thirty-five, in township twelve, north of range three west of the Indian meridian, in said territory, cancelled and forfeited to the United States, and thereupon it then and there became and was a material question whether the said Clay Peters had entered upon and occupied, contrary to law, any portion of the lands opened to settlement under the acts of Congress approved on the first and second days of March, respectively, in the year of our Lord one thousand eight hundred and eighty-nine, and the proclamation of the president of the United States, dated the 23rd day of March in the year last aforesaid, and prior to twelve o''clock noon of the 22nd day of April of the year last aforesaid, and it then and there became and was a material question where the said Clay Peters wats at the hour of twelve o''clock noon on the day last aforesaid in the year last aforesaid, and at what hour of the day last aforesaid in the year last aforesaid the said Clay Peters located and made settlement upon the above described quarter section of land, and then and there Clay Peters was produced as a witness in said land contest and cause, and as said witness in said land contest and cause was duly sworn to testify to the truth, the whole truth and nothing but the truth in said cause by said John C. Delaney, receiver as aforesaid, he, the said John C. Delaney, as said receiver, being then and there duly authorized and empowered under the laws of the United States of America to administer such oath, and being then and there a witness in said land contest and cause as aforesaid, so duly sworn as aforesaid, the said Clay Peters did knowingly, wilfully, corruptly, feloniously and falsely testify and depose and say in substance and effect, that he, the said Clay Peters, was in the Pottawatomie reservation at twelve o''clock, noon, on the 22nd day of April in the year last aforesaid; that he, the said Clay Peters, at twelve o''clock, noon, on the day last aforesaid, in the year last aforesaid, entered the Oklahoma country from the Pottawatomie reservation and that he, the said Clay Peters, located and made settlement upon the aforesaid quarter section of land at the hour of two o''clock in the afternoon of the 22nd day of April, in the year of our Lord one thousand eight hundred and eighty-nine.

Whereas in truth and in fact the said Clay Peters was not in the Pottawotamie reservation at twelve o''clock, noon, on the 22d day of April, in the year last aforesaid, and whereas in truth and in fact the said Clay Peters did not enter the Oklahoma country from the Pottawotamie reservation on the day last aforesaid, in the year last aforesaid, and whereas in truth and in fact the said Clay Peters did not enter the Oklahoma country from the Pottawotamie reservation on the day last aforesaid in the year last aforesaid at the hour of twelve o''clock, noon, and whereas in truth and in fact the said Clay Peters did not locate and make settlement upon the aforesaid quarter section of land at two o''clock in the afternoon of the 22d day of April, in the year of our Lord one thousand eight hundred and eighty- nine.

"In all of which particulars the testimony, statements and declarations so testified and deposed unto by the said Clay Peters were then and there material matter in and to the said contest and cause so instituted, begun and heard as aforesaid, and were then and there not true, but false and were then and there by the said Clay Peters not believed to be true, but were then and there by him believed to be false

"And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Clay Peters, on the 7th day of January, in the year of our Lord one thousand eight hundred and ninety-one, at the county aforesaid, did knowingly, falsely and corruptly, and feloniously commit wilful and corrupt perjury in and by his oath so taken as aforesaid, before the said John C. Delaney, receiver as aforesaid, he, the said John C. Delaney as such receiver

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