United States v. William George
| Decision Date | 24 March 1913 |
| Docket Number | No. 442,442 |
| Citation | 33 S.Ct. 412,228 U.S. 14,57 L.Ed. 712 |
| Parties | UNITED STATES, Piff. in Err., v. WILLIAM GEORGE |
| Court | U.S. Supreme Court |
Solicitor General Bullitt for plaintiff in error.
Messrs. J. J. Halligan, H. C. Brome, and W. T. Wilcox for defendant in error.
[Argument of Counsel from pages 14-16 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:
Indictment for perjury, by which defendant in error (herein referred to as defendant) is charged with falsely and corruptly taking his solemn oath in a proceeding wherein a law of the United States authorized an oath to be administered before the register of the United States land office at North Platte, Nebraska, the proceeding being the making of proof and final entry of a homestead claim of certain described lands.
The indictment charges that defendant took an oath and subscribed the same, and deposed thereby that he built a house and other improvements on the land, which he described and stated their value to be $300, and established his residence thereon in April, 1901. The dimensions of the house and other improvements were stated. He further deposed that he had continuously
Sec. 5392. Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished, etc. U. S. Comp. Stat. 1901, p. 3653 resided on the land after he had established his residence thereon, and his family, after his marriage, in 1902, with the exception of certain absences which were stated.
These facts, it is alleged in the indictment, were matters of material inquiry of the good faith of the defendant in perfecting his homestead entry. The indictment explicitly negatived the facts so deposed by defendant, and charged that he 'was not acting in good faith in making said entry and final proof as a home for himself, but in fact to defraud the United States out of the use, title, and possession of said land.'
Defendant demurred to the indictment and stated as grounds thereof (1) that it failed to state or charge any crime under the laws of the United states. (2) that there was no law of the United States which required defendant, as claimant, in making his homestead proof, to testify with reference to the matters and things set forth in the indictment, the law of the United States requiring that the facts be proved by two credible witnesses other than the claimant, and did not authorize the claimant to testify in his own behalf with reference thereto.
The demurrer was sustained, and the case was them brought here under the criminal appeals act.
It will be observed that the indictment charges that the oath was taken in a proceeding wherein a law of the United States authorized an oath to be administered. Whether it was is the question in the case; and we are brought to the inquiry as to what law of the United States authorized the oath. To this inquiry the record discloses divergent answers on the part of the government. In the district court it was the view and contention of the government that the indictment was founded on § 5392 of the Revised Statutes and § 2291, as amended by the act of March 3, 1877 (19 Stat. at L. 403, chap. 122, U. S. Comp. Stat. 1901, p. 1391). The record not disclosing this, and that it might appear, a bill of exceptions was tendered to and authenticated by the district judge. The bill of exceptions recites that the court, in sustaining the demurrer, based its decision upon those sections as the law upon which the indictment was founded, 'and held that there is no law of the United States which required the defendant, as claimant, in making his homestead proof, to testify with reference to the matters and things set forth in the indictment; the law of the United States requiring that said facts be proved by two credible witnesses other than the claimant, and not authorizing the claimant to testify in his own behalf with reference thereto.' And so far as the assignment of errors is specific, it states § 2291 (U. S. Comp. Stat. 1901, p. 1390) as the applicable law and assails its construction.
This view of the applicable law of the indictment is now abandoned. Indeed, it is distinctly rejected. The government, in its brief here, says: 'The present indictment was not based on § 2291, for it seems probable that the And, going elsewhere, the government finds the law, as it contends, in certain regulations made by the Interior Department.
There is ground for a contention that if this court should be put to a choice between these views of the applicable law of the indictment we should have to select that urged and passed upon by the trial court, and a query might then occur,—has this court jurisdiction under the criminal appeals act? That act allows a direct appeal to this court 'from a decision or judgment . . . sustaining a demurrer to any indictment . . . where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded.' 34 Stat. at L. 1246, chap. 2564.
This statute seems to require an explicit declaration of the law upon which an indictment is based and a ruling on its validity or construction. To contend for one law as applicable in the trial court and another law in the appellate court would seem not only to be opposed to the requirement of the statute, but to be inconsistent with orderly procedure, and to confound the relation of trial and appellate tribunals.
But, accepting the case as properly here, we pass to the consideration of the present contention of the government. Section 2291 is certainly a necessary if not a determinative element in that consideration. It provides as follows: '. . . If . . . the person making such entry . . . proves by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years . . . and makes affidavit that no part of such land has been alienated . . . and that he, she, or they will bear true allegiance to the government of the United States; then, in such case, he, she, or they . . . shall be entitled to a patent.' It will be observed that the facts required to be proved are stated, by what means proved, and the manner of proof and its quantum. The facts to be proved are (1) cultivation of and residence upon the land and (2) nonalienation and allegiance; the means of proof of the first being two credible witnesses; of the second, affidavit of the claimant. In other words, the section is not only explicit as to what is to be proved, but in what manner proved; and what is required of the claimant himself, to wit, an affidavit, is distinguished from what he must establish by others, to wit, two credible...
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