Van Gesner v. United States

• Decision Date: 11 March 1907
• Docket Number: 1,370,1,369,1,368.
• Citation: 153 F. 46
• Parties: VAN GESNER v. UNITED STATES. BIGGS v. SAME. WILLIAMSON v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

153 F. 46

VAN GESNER v. UNITED STATES. BIGGS v. SAME. WILLIAMSON v. SAME. ^[1]

Nos. 1,369, 1,370, 1,368.

United States Court of Appeals, Ninth Circuit.

March 11, 1907

A. S Bennett and H. S. Wilson, for plaintiffs in error.

Francis J. Heney, Sp. Asst. to Atty. Gen., and William C. Bristol U.S. Atty., for the United States.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

These cases were tried and submitted together; the plaintiffs in error being jointly charged by indictment with the crime of conspiracy to suborn perjury, in violation of the provisions of section 5440 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3676). In respect to the plaintiff in error Williamson, this statement is made in the brief of counsel for the plaintiffs in error, to wit:

'Prior to the writ of error in this case, the defendant Williamson, who was a representative in Congress, had sued out a writ of error to the Supreme Court of the United States, based upon the holding of that court, in the Burton Case, that a sentence of imprisonment against a member of Congress involved a constitutional question, giving the right of appeal direct to that court. At the time the writ of error was sued out in this case, the constitutional question in the Burton Case had never been decided. This writ of error to this court in the Williamson Case was sued out after the writ to the Supreme Court, and out of abundance of caution in case the writ to the United States Supreme Court should be dismissed upon jurisdictional grounds. The jurisdiction of this court, therefore, in the Williamson Case, depends upon whether the United States Supreme Court shall entertain jurisdiction thereof, and, if it holds that it has jurisdiction to pass upon the merits, then the proceedings in this court necessarily fail. If the Supreme Court should take jurisdiction in the Williamson Case, and pass upon the merits, its decision will necessarily be controlling in all these cases, as the record and questions presented (except the constitutional one) are identical.'

Upon this statement of counsel for the plaintiff in error, we are of the opinion that the writ in respect to the plaintiff in error Williamson must be and hereby is dismissed. He was put to his election whether he would appeal from the judgment given against him directly to the Supreme Court upon the question of jurisdiction alone, or bring the whole case to this court, in which event this court could, if it deemed proper, certify the question of jurisdiction to the Supreme Court, or the case be taken there by that court by its writ of certiorari. Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397-407, 24 Sup.Ct. 376, 48 L.Ed. 496; McLish v. Roff, 141 U.S. 661-667, 12 Sup.Ct. 118, 35 L.Ed. 893.

On behalf of the remaining plaintiffs in error, a number of points are made by counsel; the first going to the question of the sufficiency of the indictment.

It is a fundamental right of every defendant in a criminal case to insist that the indictment against him clearly charge an offense denounced by law, fairly inform him of the acts alleged to have been committed by him in violation of that law, and in a manner that will protect him in the event of a verdict of guilty, or acquittal, against any further prosecution for the same offense.

The statute under which the indictment in question is founded provides as follows:

'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to' a prescribed penalty. Rev. St. Sec. 5440.

The statute is very broad, and includes any and every case where two or more persons conspire, either to commit an offense against the United States, or to defraud the United States in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy. In any and every such case, each and every party to the conspiracy is guilty of the crime denounced by the statute, the gist of which is conspiracy. 'This offense,' said the Supreme Court in United States v. Britton, 108 U.S. 199-204, 2 Sup.Ct. 531, 534 (27 L.Ed. 698), 'does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus penitentiae, so that before the act done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute. It follows, as a rule of criminal pleading, that, in an indictment for conspiracy under section 5440, the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy.'

The indictment in question undertakes to charge against the defendants thereto the commission of the particular acts bringing them within the provisions of this law. It charges that they, together with divers other persons to the grand jurors unknown, did, on the 30th day of June, 1902, at Prineville, Or., conspire, combine, confederate, and agree together to commit an offense against the United States. That is to say, to unlawfully, willfully, and corruptly suborn, instigate, and procure a large number of persons, to wit, 100 persons, to commit the offense of perjury in the said district (of Oregon) by taking their oaths there, respectively, before a competent officer and person in cases in which a law of the said United States authorized an oath to be administered, that they would declare and depose truly that certain declarations and depositions by them to be subscribed were true, and by thereupon, contrary to such oaths, stating and subscribing material matters contained in such declarations and depositions which they should not believe to be true. That is to say, to suborn, instigate, and procure the said persons, respectively, to come in person before him, the said Marion R. Biggs, who was then and there a United States commissioner for the said district of Oregon, and, after being duly sworn by and before him, the said Marion R. Biggs, as such United States commissioner, to state and subscribe under their oaths that certain public lands of the said United States, lying in Crook county, in said district of Oregon, open to entry and purchase under the acts of Congress, approved June 3, 1878, and August 4, 1892, and known as timber and stone lands, which those persons would then be applying to enter and purchase in the manner provided by law, were not being purchased by them on speculation, but were being purchased in good faith to be appropriated to the own exclusive use and benefit of those persons, respectively, and that they had not, directly or indirectly, made any agreement or contract in any way or manner, with any other person or persons whomsoever, by which the title which they might acquire from the said United States in and to such lands should inure in whole or in part to the benefit of any person, except themselves, when, in truth and in fact, as each of the said persons would then well know, and as they, the said John Newton Williamson, Van Gesner, and Marion R. Biggs, would then well know, such persons would be applying to purchase such lands on speculation, and not in good faith to appropriate such lands to their own exclusive use and benefit, respectively, and would have made agreements and contracts with them, the said John Newton Williamson, Van Gesner, and Marion R. Biggs, by which the titles which they might acquire from the said United States in such lands would inure to the benefit of the said John Newton Williamson and Van Gesner, as copartners in the firm of Williamson & Van Gesner, then and before then engaged in the business of sheep raising in said country. The matters so to be stated, subscribed, and sworn by the said persons being material matters under the circumstances, and matters which the said persons so to be suborned, instigated, and procured, and the said John Newton Williamson, Van Gesner, and Marion R. Biggs would not believe to be true; and the said Marion R. Biggs, United States commissioner, as aforesaid, when administering such oaths to those persons, being an officer and person authorized by law of the said United States to administer the same oaths; and the said oaths being oaths administered in cases where a law of the said United States would then authorize an oath to be administered.

The indictment further charges that, in pursuance of the said unlawful conspiracy, and to effect the object of the same, the said Marion R. Biggs afterwards, to wit, on the 30th day of June, 1902, at Prineville, Or., did unlawfully prepare a sworn statement in writing, for the signature of one Campbell A. Duncan, who was one of the persons who were to be suborned, instigated, and procured, as aforesaid; that is to say, a paper of the tenor following:

'Timber and Stone Lands-- Sworn Statement.

'Land Office at The Dalles, Oregon, June 30th, 1902.

'I, Campbell A. Duncan, of Prineville, county of Crook, state of Oregon, desiring to avail myself of the provisions of the act of Congress of June 3, 1878, entitled 'An act for the sale of timber in the states of California, Oregon, Nevada and Washington Territory,' as extended to all the public land states by act of August 4, 1892, for the purchase of the S. 2 of N.E. 4 and S. 2 of N.W. 4 of section 14, township 15 S. of range 18 E.W.M., in the district of lands subject at The Dalles, Oregon, do

...