United States v. Brace

• Decision Date: 16 January 1907
• Docket Number: 4,352.
• Citation: United States v. Brace, 149 F. 874 (N.D. Cal. 1907)
• Parties: UNITED STATES v. BRACE et al.
• Court: U.S. District Court — Northern District of California

149 F. 874

UNITED STATES v. BRACE et al.

No. 4,352.

United States District Court, N.D. California.

January 16, 1907

J. H G. Weaver and W. F. Clyborne, for defendant Brace.

J. F Quinn, for defendant Young.

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

DE HAVEN, District Judge.

The indictment charges that the defendants, on May 25, 1902 entered into a conspiracy to defraud the United States by obtaining from it, in violation of the law providing for the sale thereof, title to divers tracts of land of great value situated in this district and state; that for the purpose of effecting the object of said conspiracy, certain overt acts were committed by the parties thereto on June 10, 1902, by filing and causing to be filed certain false and fraudulent applications for the purchase of such lands in the local land office at Eureka, in this district, and state. The indictment alleges:

'That from the said twenty-fifth day of May, in the year of our Lord one thousand nine hundred and two, and until and including the times hereinafter alleged, the said conspiracy, combination, confederation, and agreement was continuously in process of execution, and the said George W. Brace and Albert B. Young continued, during and including said times, to knowingly, falsely, and unlawfully to conspire, combine, confederate, and agree together (and with divers other persons named) so to defraud the United States of the title to and possession of the said lands in the manner and by means aforesaid.'

The indictment further charges that, for the purpose of effecting the object of said conspiracy, 'and while the said George W. Brace and Albert B. Young so knowingly, falsely, and unlawfully conspired, * * * as aforesaid, so to defraud the United States of its title to and possession of said lands, in the manner and by the means aforesaid,' the said defendant Brace committed other overt acts on the 11th, 12th, and 15th days of September, 1902, by causing divers persons to appear before the officers of the local land office at Eureka, Cal., and make false and fraudulent final proofs, for the purpose of establishing their right to purchase from the United States the lands for which they had applied. The indictment was found and returned on September 8, 1906. The defendant Brace has interposed a special plea, in which he alleges that the offense charged in the indictment is 'barred by the provisions of section one thousand forty-four (1044) of the Revised Statutes of the United States of America (U.S. Comp. St. 1901, p. 725), in that more than three years had elapsed between the commission of said alleged crime and the finding of said indictment, to wit, three years and eighty-nine days. And in this behalf defendant alleges that, during all of said times between the commission of said alleged crime and the filing of said indictment, the said George W. Brace was subject to the process of said court, and at no time during said time was he a fugitive from justice, or was he 'fleeing from justice;" and that he did not at any time between the date of the commission of the offense charged and the finding of the indictment 'leave his home and known place of abode with intent to avoid detection or punishment for any public offense against the United States. ' The defendant Young has also filed a special plea, similar in form to that of the defendant Brace. The United States has demurred to each of these pleas, upon the ground that it does not state facts sufficient 'to constitute a plea, or to authorize the court to stay the trial of this action,' and upon the further ground that it does not appear therefrom 'that an overt act in consequence of the conspiracy alleged in said indictment was not committed within three years before the filing thereof,' and 'because it appears upon the face of the indictment herein that an overt act in pursuance of the conspiracy alleged in said indictment was committed within three years before the filing thereof.'

1. In my opinion the allegation in the indictment that the defendants during all the times between May 25, 1902, and the commission of the last overt act therein set forth continued to conspire together to defraud the United States of the title to its public lands, in the manner and by the means agreed on between...