United States v. Stone

• Decision Date: 04 January 1892
• Citation: 49 F. 848
• Parties: UNITED STATES v. STONE.
• Court: U.S. District Court — District of Idaho

49 F. 848

UNITED STATES v. STONE.

United States District Court, D. Idaho.

January 4, 1892

Syllabus by the Court

Criminal procedure may be maintained under section 2461, Rev. St U.S., for a violation of its provisions; and it is sufficient to allege in the indictment that the cutting and removing of the timber was for use other than that of the navy of the United States. It is not necessary to allege that defendant was not justified under any of the various land laws of the United States.

Charging the 'cutting and removing' of timber does not constitute the allegation of two offenses to one count.

Fremont Wood, U.S. Atty.

McBride & Allen, Albert Hagan, and L. Vineyard, for defendant.

BEATTY District Judge.

By the indictment, in pursuance of the provisions of section 2461 Rev. St., the defendant is charged in this case with the cutting and removing of timber from the public lands of the United States, with the intent to export, dispose of, and use the same in a manner 'other than for the use of the navy of the United States. ' In the argument and consideration of the demurrer interposed by defendant to such indictment the defendant, in support thereof, claimed--First, that under said section, a criminal prosecution cannot be maintained for timber trespasses on the general public lands of the United States; second, that the indictment does not set out the use to which defendant appropriated the timber, and fails to show he does not come within the provisions of some of the statutes modifying said section, or, in other words, that it has not negatived the defendant's defenses; and, third, that the indictment, in charging the cutting and removing of such timber, has charged two offenses in one count.

1. The first objection, I think, may be clearly determined by an analysis of the section involved, without a consideration of the adjudicated cases. The first clause of this section is limited to the cutting or wanton destruction of any timber on any lands of the United States 'reserved or purchased for the use of the United States for supplying or furnishing therefrom timber for the navy of the United States. ' The second clause refers alone to the removal of such timber from such lands reserved for such naval use, but the third clause provides against the cutting or removing of live oak, red cedar, or other timber from any other lands of the United States, with intent to export, dispose of, or use the same for any other purpose than the use of the navy, and the fourth and last clause provides the penalty for a violation of the provisions of the section, which includes both fine and imprisonment. The first two clauses apply alone to the cutting, destruction, or removal of any timber, only on those lands reserved for naval use, while the third clause is to prevent the cutting or removal of timber from any other lands of the government. What other lands are referred to? The phrase 'any other lands' is easily construed, when considered in connection with what precedes it. The lands before named were those set apart for naval use, and it can only mean all other lands which the government owns than those so reserved for naval use, and such as may be elsewhere otherwise excepted. It seems indisputable that it was designed by this statute to prevent the cutting and removal of timber from such lands as are referred to in this indictment, which are not those reserved for naval use, but those belonging to that class of public lands which are open to settlement under some of the general land laws of the United States. While the defendant does not positively controvert this conclusion, he insists that the provisions of the section cannot be enforced by criminal procedure. In support of this view, he refers to section 5388 as the one applied to criminal procedure; that such procedure is invoked only in trespasses on lands reserved for some special purpose; and that the lands here trespassed upon do not belong to any such reserved class. To this it must be answered that the provisions of the last section are an exception only to those of the other section, and for an entirely different and independent purpose. They are intended to prevent the cutting and wanton destruction of timber on, and not its removal from, lands reserved for military or other purposes; the phrase 'other purposes' to be construed to be for some purpose similar to a military use. The two sections together provide against the wanton destruction of timber on lands...