Richards v. United States

• Decision Date: 03 December 1909
• Docket Number: 2,616-2,619.
• Citation: 175 F. 911
• Parties: RICHARDS v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

175 F. 911

RICHARDS v. UNITED STATES. ^[1]

Nos. 2,616-2,619.

United States Court of Appeals, Eighth Circuit.

December 3, 1909

[Copyrighted Material Omitted]

R. S Hall, John W. Lacey, and Charles J. Hughes, Jr., for plaintiffs in error.

S. R Rush and Charles A. Goss, for the United States.

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

HOOK Circuit Judge.

The plaintiffs in error were jointly indicted under section 5440 Rev. St., for conspiracy with various persons, some named in the indictment and others unknown to the grand jurors, to defraud the United States of the title, possession, and use of public lands in Cherry and Sheridan counties, Neb., by means of 'false, feigned, fraudulent, untrue, illegal and fictitious entries ' under homestead laws and to commit an offense against the laws of the United States by suborning entrymen to commit perjury in making oath to homestead affidavits.

They were tried and found guilty as charged in 35 out of 38 counts in the indictment. They were sentenced, Richards and Comstock each to pay a fine of $1,500 and to be imprisoned in a county jail for one year, and Jameson and Triplett each to pay a fine of $500 and to be likewise imprisoned for eight months. The punishment was within what might have been imposed upon conviction under any one of the counts. The assignments of error cover more than 400 pages of the printed record and those relied on more than 200 pages of the printed brief. We cannot do more than notice those which seem to merit attention.

The criticisms of the indictment are sufficiently answered by Dealy v. United States, 152 U.S. 539, 14 Sup.Ct. 680, 38 L.Ed. 545; Cochran v. United States, 157 U.S. 287, 290, 15 Sup.Ct. 628, 39 L.Ed. 704; Williamson v. United States, 207 U.S. 425, 28 Sup.Ct. 163, 52 L.Ed. 278; Olson v. United States, 133 F. 849, 67 C.C.A. 21; Stearns v. United States, 152 F. 900, 82 C.C.A. 48; Ware v. United States, 154 F. 577, 84 C.C.A. 503; Thomas v. United States, 156 F. 897, 84 C.C.A. 477, 17 L.R.A.(N.S.) 720; Gantt v. United States, 108 F. 61, 47 C.C.A. 210. The complaint that the four defendants named were each denied separate trials is disposed of by United States v. Ball, 163 U.S. 662, 16 Sup.Ct. 1192, 41 L.Ed. 300; Krause v. United States, 147 F. 442, 78 C.C.A. 642.

It is also urged that the court should have sustained defendants' challenge for cause of proposed juror Seymour, because he said he had formed from reading newspapers an impression or opinion concerning such cases in general which it would take evidence to remove. Without considering the merits of this challenge, it may be said that Seymour was not a member of the jury which tried the case, and the record does not disclose when, how, or by whom he was excused. For aught that appears, the court may have afterwards excused him of its own motion, or it may have been done at the instance of the government. Even if it could be assumed that, after their challenge for cause was overruled, he was challenged peremptorily by defendants, the record does not show they exhausted their challenges of that character. So in any aspect the question of Seymour's competency as a juror is an academic one.

Upon the examination of jurors as to their qualifications, counsel for defendants asked a number of them this question:

'Would you consider it a fraudulent practice on the United States for a man to loan to a would-be homesteader the money to pay his fees, commissions, and expenses of his entry?'

The trial court sustained an objection thereto, and its action is assigned as error. In Connors v. United States, 158 U.S. 408, 15 Sup.Ct. 951, 39 L.Ed. 1033, the court said:

'It is quite true, as suggested by the accused, that he was entitled to be tried by an impartial jury; that is, by jurors who had no bias or prejudice that would prevent them from returning a verdict according to the law and the evidence. It is equally true that a suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried.

That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is a rule in civil cases, and the same rule must be applied in criminal cases.'

The record before us shows that a wide latitude of inquiry was permitted, and no question was excluded that called for a statement of fact, or that properly tended to disclose the mental attitude of a juror towards the parties or the case to be tried. The question denied involved a rule of law concerning which, if not affecting their own transactions or their own relations to the government, men in general are not supposed to be accurately informed. It related to that which was within the province of the court in giving instructions. That this is so was recognized by defendants, for after the jury was impaneled and the evidence was in they asked the court to instruct regarding their right to advance money to entrymen, and the court did so. As said by the Supreme Court, the inquiry of proposed jurors is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. If questions like that set forth, and questions of mixed law and fact relating to the many and varied phases of a case, must be admitted-- if their exclusion constitutes an abuse of discretion, and therefore error compelling a reversal-- it is obvious that the examination of proposed jurors may be so conducted as greatly to obstruct and impede the administration of justice, without safeguarding any substantial right of an accused.

Complaint is made of the denial of defendants' request for a directed verdict. The evidence is so voluminous that it is impossible within appropriate space to do much more than refer to general features of the case made by the proofs. The great mass of corroborative detail and inferences the jury might properly draw must be omitted. It should be observed at the outset that the evidence in the case was alone that of the government. Defendants introduced none, nor sought, except by cross-examination, to explain many facts and circumstances that tended strongly to indicate guilt. The evidence showed that the Nebraska Land & Feeding Company, a Wyoming corporation, with an office at Ellsworth, Neb., ran its herds of cattle on what was generally known as the 'Spade range' in 1905 and previous years. This range, which was in Western Nebraska, was inclosed by the company with its own fences in connection with the fences of its neighbors, and included, unlawfully, many thousand acres of the public domain. There were also ranches known as the 'Overton' and 'C-Bar' which as some testimony tended to show were a part of the 'Spade Range and used by the Nebraska Company. Defendants Richards, Comstock, and Jameson acted on behalf of the company in various matters about to be related. They were about the office of the company, in Ellsworth, apparently with authority, and letters were written by them about the matters under investigation upon its letter heads, which recited that Richards was president, Comstock vice president, and Jameson secretary and treasurer. One letter Jameson signed as secretary.

On April 28, 1904, an act of Congress, commonly called the 'Kinkaid Act' (33 Stat. 547, c. 1801 (U.S. Comp. St Supp. 1909, p. 543)), was passed authorizing homestead entries in Western Nebraska in tracts of 640 acres. The act was to take effect June 28, 1904. The land in that country was generally of a character suitable for grazing, rather than for agricultural cultivation, and the prior limitation of homestead entries to 160 acres did not make it inviting. The object of the act was to encourage actual bona fide settlement by increasing the quantity of land that might be taken for a homestead. If this object had been realized, the result would have been the peopling of the country and the breaking up of the inclosures of the large cattle ranges. The defendants, including those jointly indicted, but tried separately, induced large numbers of men, mostly veterans of the Civil War, to make homestead entries on the range under the Kinkaid act. The entrymen came from Nebraska, Iowa, and Illinois, many of them from soldiers' homes in those states. Veterans were preferred, and were the greater in number, because their service in the army shortened the required period of residence on the lands entered as homesteads. The entrymen were attracted by promises of payment of all expenses, and by representations that their improvements would be made for them, and that they need not live on the lands selected, but, instead, a visit once in every six months was all that was necessary. There was also held out to them the promise of sale when final proofs were made. They came in small parties, sometimes a dozen or so, almost invariably in personal charge of some man in the service of defendants. Most of them were first taken to Gordon or Ellsworth, Neb., and thence driven to the range, where the drivers of the vehicles, who had been furnished by some one acting for defendants with the descriptions of the lands, pointed out to them the tracts selected for their entries. It is quite apparent, however, that in some instances slight attention was paid to pointing out the right tract to the right man. They then returned, their entry papers were prepared for them, sworn to, and they went to the land office under the personal supervision of one of the defendants or some one in their service. With very few exceptions their railroad fares, hotel bills, livery hire, fees for making oath to their papers, and their entry fees were...