Stearns v. United States

• Decision Date: 01 February 1907
• Docket Number: 2,411.
• Citation: 152 F. 900
• Parties: STEARNS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

152 F. 900

STEARNS v. UNITED STATES.

No. 2,411.

United States Court of Appeals, Eighth Circuit.

February 1, 1907

[Copyrighted Material Omitted]

R. W Stewart (John F. Hughes, on the brief), for plaintiff in error.

Charles C. Houpt, U.S. Atty. (Joel M. Dickey, Asst. U.S. Atty., on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

VAN DEVANTER, Circuit Judge.

Royal B. Stearns, with another, was convicted in the District Court of a conspiracy to defraud the United States, a crime denounced by section 5440, Rev. St., as amended May 17, 1879 21 Stat. 4, c. 8 (U.S. Comp. St. 1901, p. 3676), which reads:

'If two or more persons conspire either to commit any offence against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.'

The indictment charges the conspiracy in this way:

'The said Royal B. Stearns and William T. Horsnell did then and there unlawfully, wrongfully, feloniously, and knowingly conspire, combine, confederate, and agree together to defraud the United States of the title and possession of certain lands of the said United States, of great value, under the homestead laws of the said United States, by means of false, feigned, forged, fraudulent, and fictitious entries of said lands under the homestead laws of the United States, which said lands were then and there situate in the state and district of South Dakota, and in the district of lands subject to entry under the homestead laws of the United States at the local land offices of the United States, in the Pierre land district and in the Chamberlain land district, both of said land districts then and there being in the state and district of South Dakota.'

And it then charges with much particularity the doing of several acts to effect the object of the conspiracy, the substance thereof being that the defendants caused to be presented and filed in said local land offices certain described homestead applications accompanied by certain affidavits, which purported to have been subscribed and sworn to by bona fide homestead applicants in conformity with the homestead laws of the United States and the regulations of the General Land Office, but which, as was well known to the defendants, were false, forged, and fraudulent in this: They had not been subscribed or sworn to before the officer whose jurat was thereto attached, and were not made by bona fide homestead applicants. This part of the indictment fully describes the specific lands embraced in these applications, and states that they were 'public lands of the United States, subject to homestead entry,' at said land offices.

Before the trial the sufficiency of the indictment was not questioned in any way, but after verdict it was challenged by a motion in arrest of judgment, the denial of which is assigned as error. The contention is that the indictment charges a conspiracy to defraud the United States of the title and possession of some of its lands by means of fraudulent homestead entries, without charging that the lands were public lands, subject to homestead entry, and that it is therefore fatally defective, first, as not showing that the object of the conspiracy could be effected by the means stated, and, second, as not enabling the accused to prepare their defense, because leaving it uncertain whether they would be confronted at the trial with proof that the conspiracy related only to public lands, subject to homestead entry, or extended to other lands of the United States, not public or subject to homestead entry, such as post office sites, military reservations, and the like.

Lands of the United States, which are used as post office sites, military reservations, and the like, are not within the operation of the public land laws, and no attempt to make entries of them in the land offices can be effective for any purpose, because the land officers have no authority to dispose of them. Wilcox v. McConnell, 13 Pet. (U.S.) 498, 513, 10 L.Ed. 264; Scott v. Carew, 196 U.S. 100, 109, 25 Sup.Ct. 193, 49 L.Ed. 403; Burfenning v. Chicago, etc., Co., 163 U.S. 321, 16 Sup.Ct. 1018, 41 L.Ed. 175; Smelting Co. v. Kemp. 104 U.S. 636, 641, 26 L.Ed. 875. So long and firmly has this been settled, and so generally is it recognized throughout the public land states and territories, that when mention is there made of entries in the land offices it is immediately understood, if nothing be said to the contrary, that they relate to lands which are subject to disposition in some form under the public land laws, and not to those which are set apart and used for some special public purpose. True, the former, when there is occasion to distinguish them from the latter, are usually spoken of as 'public lands' (Barker v. Harvey, 181 U.S. 481, 490, 21 Sup.Ct. 690, 45 L.Ed. 963; Northern Lumber Co. v. O'Brien, 71 C.C.A. 598, 139 F. 614), but this is not essential if the meaning be otherwise plain. Leavenworth, etc., Co., v. United States, 92 U.S. 733, 23 L.Ed. 634.

Not all public lands are subject to homestead entry, but it does not follow that attempts to make homestead entries of such as are excepted from that mode of disposal are never effective. When the exception turns upon a question of fact, such as whether the lands contain valuable coal or mineral deposits, the determination of which is committed to the land officers and must rest upon proofs outside the records, it is always possible for applicants, by making false proofs, to impose upon these officers, and secure the allowance by them of homestead entries of lands of the excepted class. Of course such entries are fraudulent, but, being allowed in the exercise of a lawful authority, they are not void, but voidable merely, and may be the means of defrauding the United States. Burfenning v. Chicago, etc., Co., supra; United States v. Mackintosh, 29 C.C.A. 176, 85 F. 333; United States v. Minor, 114 U.S. 233, 240, 5 Sup.Ct. 836, 29 L.Ed. 110; Steele v. Smelting Co., 106 U.S. 447, 453, 1 Sup.Ct. 389, 27 L.Ed. 226; United States v. Winona, etc., Co., 15 C.C.A. 96, 103, 67 F. 948; Parsons v. Venzke, 164 U.S. 89, 92, 17 Sup.Ct. 27, 41 L.Ed. 360; In re John O'Dea, 6 Land Dec.Dep.Int. 819. And they may also be fraudulent for other reasons, applicable to all original homestead entries, as where they are made in pursuance of collusive agreements by the applicants to give to others the benefit thereof, or are made by persons who falsely represent themselves as possessing the requisite qualifications when they do not possess them.

We are aware that there is persuasive authority for the position, taken by the learned judge who presided at the trial, that under section 5440 the means of effecting the object of the conspiracy do not constitute an element of the offense and need not be stated in the indictment, or, if stated, need not be so fully described or so supplemented by the statement of other matters as to make their adequacy apparent. United States v. Dustin, 25 Fed.Cas. 944, No. 15,011; United States v. Dennee, 25 Fed.Cas. 818, No. 14,948; United States v. Gordon (D.C.) 22 F. 250; United States v. Benson, 17 C.C.A. 293, 298, 70 F. 591, 596; Gantt v. United States, 47 C.C.A. 210, 108 F. 61. See, also, United States v. Cruickshank, 92 U.S. 542, 558, 23 L.Ed. 588; Pettibone v. United States, 148 U.S. 197, 203, 13 Sup.Ct. 542, 37 L.Ed. 419; Dealy v. United States, 152 U.S. 539, 544, 14 Sup.Ct. 680, 38 L.Ed. 545. But as in the present case the result must be the same whether this position be correct or otherwise, and as its correctness was neither affirmed nor denied in argument, we deem its consideration at this time unnecessary.

With these preliminary observations, some of which will serve to avoid any misapprehension of what is here decided, we proceed to consider the objections made to the indictment. The act of conspiring, the purpose to defraud the United States of the title and possession of certain of its lands, and the doing of several acts to effect this purpose are all directly and plainly stated. And in like manner it is stated that the unlawful purpose was to be effected under color of the homestead law, by means of false, forged, and fraudulent homestead entries. This, without more, strongly implies that the conspiracy had in view lands which were public and possible of acquisition...