United States v. Peuschel

• Decision Date: 28 April 1902
• Docket Number: 36.
• Citation: 116 F. 642
• Parties: UNITED STATES v. PEUSCHEL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 642

UNITED STATES v. PEUSCHEL et al.

No. 36.

United States District Court, S.D. California, Northern Division.

April 28, 1902

L. H Valentine, U.S. Atty.

Hannah & Miller and W. D. Crichton, for defendants.

WELLBORN District Judge.

Prosecution for conspiracy to defraud the government of the title to and possession of certain lands therein described. The indictment alleges that defendants, on the 6th day of June, 1899 conspired to defraud the United States of the title and possession of said lands 'by means of false, feigned, and illegal entries of said lands under the homestead laws of the said United States, and appearing on the books of the United States land office at the city of Visalia, county of Tulare within said division of said district, as subject to entry and settlement, but were then and there in truth and in fact mineral lands, and not subject to entry or settlement; which fact was then and there well known to said Edward A. Peuschel, Frederick G. Maid,' etc. It is then alleged that in pursuance of said conspiracy, on the 7th day of June, 1899, the defendant Maid filed in the land office at the city of Visalia, in the said county of Tulare, his written application to enter said land, and that at the time of filing said application, and as a part of the same transaction, he filed a nonmineral affidavit, and that said lands 'were then and there public lands of the United States, and appeared upon the books of the said United States land office at said city of Visalia as subject to entry and settlement; but said lands were then and there in truth and in fact mineral lands not subject to entry and settlement under the homestead laws of the United States,-- all of which was then and there well known to said Edward A. Peuschel, Frederick G. Maid,' etc. The indictment then alleges that said affidavit was made on the 6th day of June, 1899, by said Maid, in pursuance of said conspiracy, and states the substance of the same, and continues as follows:

'The said Edward A. Peuschel and said Frederick G. Maid, and said others to the grand jurors unknown, then and there well knowing that said lands referred to in said affidavit, and for which application to enter was made by said Frederick G. Maid, were then and there mineral lands, and not subject to entry or settlement under the homestead laws of the United States, and that there were then and there within the limits of said lands valuable mineral deposits, ' etc.

The counties of Kern and Tulare, in which the conspiracy was formed and overt act committed, have been within the Southern district of California ever since it was organized. On the 29th day of May, 1900, an act of congress was passed, which went into effect June 30th thereafter, transferring to said district from the Northern district of California the three counties of Merced, Mariposa, and Inyo. 31 Stat. 219. The objections urged against the indictment are as follows: First. That the sixth amendment to the constitution of the United States provides that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,' and that because of the above-mentioned transfer of counties a jury for the trial of the defendants, such as said amendment guaranties, cannot be had, and therefore the prosecution should be discontinued. Second. That the question of the right of defendant Maid to perfect the homestead entry mentioned in the indictment is pending before the land department, and that said department has exclusive jurisdiction to determine some of the matters here involved, namely, the character of the land and the bona fides of the entry. Third. That the indictment does not allege as a fact that the lands contained any known mines or valuable mineral deposits. Fourth. That if the lands, by reason of known mines or valuable mineral deposits therein, were not subject to homestead entry, neither the alleged entry nor a patent issued thereon could in any manner affect the title to or possession of said lands. These objections will be considered in the order of their statement.

I. The phraseology of the act of congress above mentioned, transferring to this district the three counties named, admits of no dispute as to the intention of congress in its passage. The title is as follows:

'An act to detach certain counties from the United States judicial district of northern California and to annex such counties to the United States judicial district of southern California; to divide said Southern district of California into two divisions and to provide for the holding of terms of court at the city of Fresno and city of Los Angeles.'

In furtherance of one of the objects thus declared, the first section of the act is as follows:

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that all that portion of the state of California now comprised in the counties of Inyo, Mariposa, and Merced is hereby detached from the United States judicial district of northern California, known as the Northern district of California, and annexed to and made a part of the United States judicial district of southern California, known as the Southern district of California.'

It will be observed that said act, both in title and enacting clause, expressly recognizes the continuation of the then existing districts, one known as the Northern and the other as the Southern district of California, and that the only change the act makes or purports to make in the two districts is to take from the Northern and add to the Southern district an inconsiderable amount of territory, leaving both districts the same in all other respects,--in name, in jurisdiction, in personnel of the courts, etc. Many similar statutes, with similar results, affecting various districts, and sometimes circuits, throughout the United States, have been enacted at different times by congress, and there is no principle upon which such legislation has more uniformly proceeded than that changes in the boundaries of districts and circuits do not affect their identity in law. Counsel for defendants, however, contend that the sixth amendment to the constitution guaranties to an accused person the right to trial by a jury drawn from the citizenry eligible to jury service within the district where the offense was committed at the time of its commission, and that any subsequent increase or decrease of such citizenry by a change in the boundaries of the district, unless the act making the change expressly saves from its operation past offenses, renders a constitutional jury or trial impossible, and that an indictment found under such circumstances is ineffectual, and should, therefore, be set aside by the court. Congress, in the passage of said act of May 29, 1900, above mentioned, took-- and rightfully, as I shall show later on-- a different view of said amendment, which amendment unquestionably was then present and prominent in the legislative mind. Section 5 of said act provides, among other things:

'That all offenses committed in that portion of the Northern district of California hereby detached therefrom and prior to the passage of this act shall be prosecuted, tried, and determined in the same manner and with the same effect to all intents and purposes as if this act had not been passed.'

This provision, which, in effect, so far as past offenses are concerned, retains within the Northern district the territory otherwise detached therefrom, was incorporated in the act for the sole purpose of avoiding any failure in the execution of criminal laws in said territory through the operation of the sixth amendment. Now, if congress had for a moment supposed that by making such a transfer of territory it was so changing the districts as that neither of them, with reference to any of the other counties, could thereafter be said, within the meaning of said sixth amendment, to have been 'previously ascertained,' it would, instead of limiting said provision to offenses committed in the three counties transferred, have extended it to all offenses committed prior to the passage of the act in all the counties of both districts. The fact that said provision was not so extended shows conclusively that in the opinion of congress the transfer of the three counties from one district to the other could not affect prosecutions for offenses theretofore committed, except such as were committed in the transferred counties. This construction of the sixth amendment, upon which congress obviously acted, is clearly the only admissible one. The manifest object of said amendment is to preserve to a person charged with crime such a jury as he was entitled, at the time of its commission, to demand. Now, a defendant in a criminal case cannot require that a jury for his trial shall be made up of persons coming from every neighborhood in the district, but only that all the jurors shall be residents of the district. U.S. v. Ayres (D.C.) 46 F. 651; U.S. v. Wan Lee (D.C.) 44 F. 707. In the latter case, Judge Hanford says:

'All that the defendant can claim as a constitutional right is to have a jury of the district try his case; that is, a jury

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