United States v. McCord

• Decision Date: 26 November 1895
• Citation: United States v. McCord, 72 F. 159 (W.D. Wis. 1895)
• Parties: UNITED STATES v. McCORD et al.
• Court: U.S. District Court — Western District of Wisconsin

72 F. 159

UNITED STATES v. McCORD et al.

United States District Court, W.D. Wisconsin.

November 26, 1895

The proof introduced by the government showed that in December 1890, or January, 1891, the defendant McCord had an interview with the witness Day, to the effect that the latter should obtain homestead settlers to go to the land office at Ashland, in April, 1891, when the lands were to be offered for homestead entry, and have them make applications for homestead entries, and that McCord would furnish the money to pay their expenses, cost of living, cost of necessary homestead improvements, and for land-office fees, and necessary fees in case of contest, and for these sums was to have security upon the land when obtained by the homesteader.

In the latter part of March, 1891, defendant McCord wrote a letter to Mr. Day, as follows:

'I am interested in the lands that are coming in at Ashland April 17th, and can get you a homestead in this way: You go there Tuesday, April 7th, and I will get you a place in the line, and then I will pay half of all the expenses, and you pay half, and let your family go and live on it, and when you prove up you have half the profits and I half. We will allow the family so much a month to live on while they are there, and charge so much to get the estimates,--about $25 I think,-- then the expense of making out papers and your expenses while filing, and then divide in the end.'

In the early part of April, 1891, the defendant Box went to the house of the witness Hobbs, and represented to Mrs. Hobbs that if her husband would take up a homestead when the lands should be offered at Ashland, in April, 1891, McCord would pay the expenses, and would expect to have one-half the land and timber in return for the payment of such expenses. Mr. Hobbs, however, did not make any homestead application. In April, 1891, Mr. Day went to Ashland, in pursuance of the understanding had with McCord, and procured homesteaders to get into line at the windows of the Ashland land office, for the purpose of making applications for homesteads. This was done expressly under the previous understanding with McCord, and these men so procured to stand in line were expected to come into the arrangement which McCord had made with Day. Before the time of entry arrived, the secretary of the interior suspended the sale, on the ground that violence and bloodshed were apprehended, and later the lands were again opened for settlement, on the 2d day of November, 1891. In the latter part of September or first part of October, 1891, Mr. Day arranged with the defendant James B. Murray to go to Iron River, Wis., in the vicinity of the lands in question, and make an entry upon land that would be pointed out to him by Day, and under which arrangement Murray was to be furnished with the entry fee, to be paid for his living expenses while on the land, for his improvements, and also for contest fees in case of a contest, and was then to give security to McCord upon the land so entered. Murray accordingly went to Iron River about the 23d of October, 1891, and thereafter made the homestead application mentioned in the first count of the indictment, which was forwarded to Ashland, and filed November 2, 1891. Murray made a settlement upon the land, and improvements, and a contest was had in May, 1892, in the land office, the expense of which was paid by the defendant McCord, and which was decided in favor of Murray. On May 18, 1892, the following written agreement was entered into between McCord and Murray:

'This agreement, made and entered into by and between James B. Murray, of Bayfield county, Wisconsin, party of the first part, and A. R. Osborn and W. E. McCord, parties of the second part, is as follows: The first party hereby agrees and binds himself to build a house and make such other improvements on as may be necessary, and move onto and maintain a residence on (here follows description of lands), and as soon as he receives a final receipt on the same to pay to the party of the second part the sum of two hundred and fifty dollars for the numbers, and ten per cent. interest on all moneys furnished him to live, etc., or to give second party security for same on above-described land. And the second party agree to furnish fifty dollars to build a house, five dollars per month to live on, and to pay the attorney fees and land-office fees in Ashland and Washington.

'James B. Murray.'

In 1893 the defendant Murray relinquished to the government his homestead rights under his settlement, and the land was entered under the stone and timber act by one Hoover. No testimony was given on the part of the defendants, but, at the close of the case made by the government, a motion was made on the part of the defendants to direct a verdict for the defendants, on the ground that the statute of limitations of three years had run upon the prosecution before the filing of the indictments.

H. E. Briggs, U.S. Atty., and James G. Flanders, for the United states.

Spooner, Sanborn, Kerr & Spooner, Chas. Felker, and Lamoreux, Gleason, Shea & Wright, for defendants.

BUNN District Judge (charging jury).

Had not the questions raised by the evidence in the case made by the prosecution been very thoroughly argued, and abundance of authority produced, the court would hesitate to decide finally upon them at this stage of the trial, but would submit the case to the jury, and reserve the questions for further and more elaborate consideration; but according to the view which the court takes of the case, it would be very doubtful whether the court would get any further light if these questions were to be reserved for further consideration upon a motion for a new trial, in case a verdict should go against the defendants, or any of them. The case has been argued with much thoroughness and ability on both sides, and I do not know but the court is about as well prepared to dispose of the case now as it would be at any time in the future. The separate and distinct motions in favor of the defendants Heydlauff and Mrs. Andrews will be overruled, on the ground that, while the evidence is not so strong against them or either of them as against the other defendants, the court cannot say but what there is some evidence which ought to be submitted to the jury, if the case is to go the jury at all. However, I may say this: that as far as the case of Mrs. Andrews is concerned, the evidence showing that she was a mere clerk or secretary of Mr. McCord in this whole transaction,-- nothing to show that she had any interest in it herself, or was to share in the proceeds, or that she was originally a party to the conspiracy, except as acting there as clerk for the defendant McCord,-- I should have considerable doubt about the evidence being sufficient to support a verdict against her, and if her case rested upon that proposition alone, I should wish to look a little further into the evidence, to see whether there was evidence which should go to the jury or not. I would want a little further light on the question how far a clerk, or person acting as a mere secretary, and perhaps knowing something about the unlawful intent, but having no interest in the conspiracy, and not being an original party to it,-- how far she could act with guilty knowledge, if the transactions of her principal were unlawful, without connecting her with the case. But, as the court said, it will overrule the motion, so far as these two defendants are concerned,-- the separate motion in favor of discharging them,-- on the ground that they are not sufficiently connected with the conspiracy, because I think the case may be satisfactorily disposed of upon the other motion, which is to direct a verdict in favor of all the defendants, on the ground that the government has not made a case under the law. That is my deliberate judgment,-- that the government has not made a case under the law.

It is incumbent upon the prosecution in a criminal case to show that a criminal act has been committed within the time limited by the statute of limitations,-- that the statute of limitations has not run upon it. It is incumbent upon the government to show,-- and the rule is different in criminal cases from what it is in civil cases, where the statute of limitations is held to be a defense, and must be pleaded,-- it is incumbent upon the prosecution, as an affirmative proposition in a criminal case, to make a case that is satisfactory to the jury, on which the statute of limitations has not run. In a criminal case under the United States statutes it is incumbent on ...