Simpson v. United States

• Decision Date: 16 February 1911
• Docket Number: 3,393.
• Citation: 184 F. 817
• Parties: SIMPSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

184 F. 817

SIMPSON v. UNITED STATES.

No. 3,393.

United States Court of Appeals, Eighth Circuit.

February 16, 1911

Charles M. Thacker (H. M. Thacker, on the brief), for plaintiff in error.

George F. Zimmerman, Asst. U.S. Atty. (John Embry, U.S. Atty. and Isaac D. Taylor, Asst. U.S. Atty., on the brief), for the United States.

Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER District judge.

WM. H MUNGER, District Judge.

The plaintiff in error was indicted, tried, convicted, and sentenced upon the first count in the indictment, in the United States District Court for the Western District of the state of Oklahoma, for violating the provisions of Act Feb 25, 1885, c. 149, 23 Stat. 321 (U.S. Comp. St. 1901, p 1524), being an act to prevent unlawful occupancy of the public lands.

The first count in the indictment charged that the defendant did wrongfully, unlawfully, willfully, and knowingly maintain and control an inclosure of the public lands of the United States, situate in the counties of Beckham and Greer, in said district. Said lands were described in the said count of the indictment by governmental subdivisions. The count further alleged that said inclosure so maintained and controlled consisted of posts and wire fences; that the said defendant in maintaining and controlling said fences and inclosure, had no claim or color of title to any of said lands made or acquired in good faith, or asserted right thereto by or under claim made in good faith with a view to entry thereon at the proper land office of the United States in said district under the general laws of the United States.

As defendant was not convicted upon the second count, it does not require consideration.

A demurrer to the first count was overruled, which ruling is assigned as error. It is insisted that the demurrer should have been sustained--

'because it is not alleged in the indictment that posts and wire fences surrounded the lands, nor that they connected with natural barriers so as to thereby surround the lands, nor that there were any openings which plaintiff in error rendered, or attempted to render, ineffectual as ways of ingress or egress, so that his acts in this regard, in connection with the posts and wire fences and other barriers, if any, surrounded the lands with effective obstacles to ingress and egress.'

The demurrer was properly overruled. The count in the indictment charged the defendant with maintaining and controlling an inclosure of the public lands therein described; said inclosure so maintained and controlled by him consisting and being composed of posts and wire fences. We think the charge that it was an inclosure was a sufficient allegation that the lands therein described were surrounded by posts and wire fences.

Defendant, after the overruling of the demurrer, filed a motion for a bill of particulars in the following respects:

'So that he may know and be informed: (a) Whether the alleged posts and wire fences completely surrounded the lands therein described; and, if not, where and what are the particular fences to which said allegation relates, and who owns same? (b) What are the acts or relations of the defendant contemplated and deemed offensive by the allegation that he did maintain and control the alleged inclosure of public lands?'

We think the defendant was sufficiently advised in these respects by the charge in the indictment against him, and the court did not err in overruling the motion for a bill of particulars.

During the selection of the jurors, after they had been examined by counsel, two jurors voluntarily informed the court that they themselves had inclosed public lands; that they had not been interrogated on that subject, and they thought they should advise the court of the fact before their selection. They were thereupon more fully interrogated by the parties and by the court; each juror, however, stating that he did not think such fact would in any respect influence his verdict. They were each, however, challenged by the prosecution for cause, and the challenge sustained, to which the defendant excepted. The record discloses the fact that the jury was subsequently selected and sworn that tried the case; but it fails to show that any objectionable juror was selected over the defendant's challenge for cause, or that he exhausted his peremptory challenges. Under the practice in the federal courts it is only when the record discloses the fact that an impartial jury may not have been selected, either by the exhaustion of a party's peremptory challenges and the selection of a juror over his legal objection, or by some other equally cogent evidence, that a fatal error in the selection of the jury is presented to an appellate court. Northern Pac. R.R. Co. v. Herbert, 116 U.S. 642, 6 Sup.Ct. 590, 29 L.Ed. 755;

Marande v. T. & P. Ry. Co., 59 C.C.A. 562, 124 F. 42; Thompson on Trials, Sec. 120.

At the close of the opening statement of the case to the jury by counsel for the government, and...