United States v. James Barber

• Decision Date: 03 January 1911
• Docket Number: No. 444,444
• Citation: 219 U.S. 72,31 S.Ct. 209,55 L.Ed. 99
• Parties: UNITED STATES, Plff. in Err., v. JAMES T. BARBER, Sumner G. Moon, et al
• Court: U.S. Supreme Court

219 U.S. 72

31 S.Ct. 209

55 L.Ed. 99

UNITED STATES, Plff. in Err.,

v JAMES T. BARBER, Sumner G. Moon, et al.

No. 444.

Argued October 17, 18, 1910.

Decided January 3, 1911.

Assistant Attorney General Fowler for plaintiff in error.

Messrs. C. T. Bundy, James H. Hawley, A. A. Fraser, N. H. Clapp, A. E. Macartney, Joseph G. Dudley, and Roy P. Wilcox for defendants in error.

Mr. Chief Justice White delivered the opinion of the court:

On April 14, 1908, in the district court of the United States for the district of Idaho, an indictment was returned which, in four counts, charged James T. Barber, Sumner G. Moon, Frank Martin, and Albert E. Palmer with having violated the conspiracy section of the Revised Statutes, viz., § 5440 (U. S. Comp. Stat. 1901, p. 3676). In the court below, Frank Martin was dismissed from the indictment. Palmer made no appearance, presumably not having been arrested.

The final judgment, to reverse which this writ of error was sued out, is as follows:

'Now came the attorneys for the respective parties herein, and thereupon the demurrer to the third count in the indictment herein is withdrawn by the defendants. The demurrer to the second count of the indictment is confessed by complainant, and it is ordered that the demurrer and plea in abatement to the first count of the indictment be and is hereby overruled and denied. It is further ordered that plea in abatement to the fourth count of the indictment be and is hereby sustained. Thereupon counsel for the government moved and asked that the three first counts of the indictment in the above-entitled action be nollied; thereupon said motion was granted and the cause dismissed; all in accordance with the direction of Hon. Robert S. Bean, district judge, who heretofore heard and took under advisement said demurrer and plea in abatement.'

As by this judgment the first, second, and third counts of the indictment were dismissed by the court at the request of the United States, only the action of the court on the fourth count is open for consideration. It is for the purpose of correcting such action that the United States has prosecuted this writ, doing so upon the assumption that the judgment complained of is embraced within the third class of judgments which it is provided by the act of March 2, 1907 (chap. 2564, 34 Stat. at L. 1246, U. S. Comp. Stat. Supp. 1909, p. 220), may be removed to this court by writ of error, viz., a judgment 'sustaining a special plea in bar when the defendant has not been put in jeopardy.'

It is at once to be observed that the text of the judgment purports to sustain a plea in abatement to the fourth count of the indictment, and as the act of 1907 contains no provision authorizing the review of a judgment sustaining a plea in abatement, counsel for defendants in error now urge that we are without jurisdiction, because each of the pleas upon which the judgment dismissing the indictment was based was filed as a plea in abatement and was argued as such, and the judgment 'is an abatement and dismissal of the pending cause only.'

Briefly the state of the record on the subject is this: By the fourth count of the indictment it was charged as follows:

'And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said James T. Barber, Sumner G. Moon, Albert E. Palmer, and Frank Martin, in the state and district of Idaho, and within the jurisdiction of this court, heretofore, to wit, on the 1st day of September, in the year 1901, and at the time of the committing of the several overt acts hereinafter in this indictment set forth, and continuously at all times between said 1st day of September, in the year 1901, and the day of the presenting and filing of this indictment, did unlawfully conspire, combine, confederate, and agree together and with Frank Steunenberg, William Sweet, John Kinkaid, Louis M. Pritchard, John I. Wells, Patrick Downs, and divers other persons whose names are to the grand jurors unknown, knowingly, wickedly, falsely, and corruptly to defraud the United States of America out of the possession and use of and title to divers large tracts of timber lands of the United States situate in township 6 north, ranges 4, 5, 6, 7, and 8 east of the Boise meridian, township 7 north, ranges 4, 5, 6, 7, and 8 east of the Boise meridian, and township 8 north, range 5 east of the Boise meridian, in the county of Boise, in the state of Idaho, and within the Boise, Idaho, land district of the United States, all of which lands were then and there public lands of the United States, with the intent and purpose unlawfully to obtain the title to said lands for the use, benefit, and profit of themselves and a certain corporation thereafter to be organized, and organized, to wit, the Barber Lumber Company, a corporation organized under the laws of the state of Wisconsin, and doing business in the state of Idaho, with an office and agent at the city of Boise in said state, and ultimately to obtain the transfer of the title to said lands to said corporation. . . .'

The count next averred in substance that the object of the conspiracy was to be accomplished by unlawfully, etc., procuring a large number of persons to apply for and enter lands under the timber laws of the United States, for the use and benefit of the conspirators, upon the following understandings and agreements to be had with the proposed applicants prior to and at the time of the first application to enter the lands: (a) that the title to lands to be applied for, when acquired, should inure to the use and benefit of the conspirators and...