Counsel for the government, in the examination of Juror O. M. Hall, who was afterwards sworn as a juror in the case, asked the following question:

"Q. Have you any objection to the enforcement of the law of the United States relative to fraudulent practice in acquiring land? A. I have not; no, sir."

Then on cross-examination the question was asked him:

“Q. Would you consider it a fraudulent practice on the United States for a man to loan a would-be homesteader the money to pay his fees, commission, and expenses of making entry?"

This was excluded by the court. The like question was propounded to other jurors, who served on the trial, and excluded by the court. If it was competent, as it was, for counsel for the government to inquire if the juror had any objection to enforcing the law against fraudulent practices respecting homestead entries, it is difficult to perceive why, for the purpose of enabling defendants' counsel to make peremptory challenges, the defendants should not have been permitted to follow up the line of inquiry by asking the question excluded. The trial court responded by its ruling favorably to the reason assigned by counsel for the government, that the question in effect submitted to the jury a matter of law, and that view, among others, is approved by the majority opinion. I respectfully submit that the phrase, "Would you consider it a fraudulent practice on the United States," implies no criminal consequence. Clearly enough it was intended to learn the mind of the juror, as to how he viewed the mere act of furnishing money to men entitled to make homestead entries, with which to pay the fees and expenses of his entry. If the inclination of his mind were to regard such acts with disfavor, as tending to fraud, while that might not disqualify the juror it was an indication of the bent of his mind his feeling respecting such act, which the defendants might have to overcome. It was certainly so related to the very matters to be tried as would afford some safeguard in making challenges. It by no means, in my opinion, meets the right of the defendant in a criminal prosecution to be reasonably advised, so as to exercise intelligently his right of challenge, to say that the court in its charge might tell the jury that such and such act was not criminal, as it should be presumed the juror would heed the court. This very suggestion is a concession that the state of mind inquired about was neither collateral nor irrelevant, but was of substance, coming, as the record shows, within the due consideration of the case on trial. If the juror had preconceived notions that such practice tended to fraud, according to his moral sense, if advised thereof, counsel for the government would certainly the more willingly accept such a juror as more likely to find a verdict of guilty on the broader inclusive issue as to whether other things done by the defendants respecting the entries were in good faith. For a like reason the defendants would be prudent in not accepting such juror.

The case of Connors v. United States, 158 U. S. 408, 15 Sup. Ct. 951, 39 L. Ed. 1033, cited in the majority opinion, is quite different from the situation here presented. Connors was indicted for violating the federal statute then in force, prohibiting interference with judges

of election in performing their duties. The inquiries put to the juror were political in character, as to whether or not he was active in politics at elections, or a partisan, whether that prejudiced him, and whether or not he was a member of a committee known as the "Committee of One Hundred." It is apparent, on careful reading of the opinion of Mr. Justice Harlan, that he thought it unadvisable, as matter of public policy, to inject partisan politics into the case, for the reason that:

"The law assumes that every citizen is equally interested in the enforcement of the statute to guard the integrity of national elections, and that public opinion or affiliations will not stand in the way of an honest discharge of his duty."

So, also:

"Active participation in politics cannot be said, as matter of law, to imply either unwillingness to enforce the statutes designed to insure honest elections and due returns of the votes cast, or inability to do justice to those charged with violating provisions of those statutes. Strong political convictions are by no means inconsistent with a desire to protect the freedom and purity of elections."

Further on, the opinion adverted to the fact that there was no extraneous evidence showing any special reason for putting the particular question to the juror, and there was nothing in the record to show that there was any such committee as the "One Hundred of the City of Denver," or any connection between the committee and the prosecution. But in the case at bar the question put by the government's counsel to the juror in the first instance indicated that there was some connection between the alleged fraudulent practice of the government respecting homestead entries and the case at bar. The records of this court, and the current newspaper literature of the day, showed that similar prosecutions had been conducted in the federal court of Nebraska; and there was consequently a wide-spread feeling respecting the very character of offense with which these defendants were charged. How the mind of jurors might be affected towards persons furnishing money for such purpose, when it was accompanied with the charge that it was not done in good faith, was pertinent to the ultimate question to be tried, and, therefore, the predilection of the juror was proper information to aid the defendants in striking the jurors.

Courts of the highest character have given expression to the rule of law in this respect as follows:

"To give to both state and defendants considerable latitude in the examination of persons called to act as jurors, not only to facilitate the discovery of grounds for challenge for cause, but to enable the parties interested to discover any peculiarity of conduct, association, character, or opinion, or any predilection, of the person under examination, or other circumstances which, in the opinion of the examiner, might influence the person as a juror, and affect his verdict. It is well known to persons familiar with jury trials that jurors are frequently influenced in reaching a verdict by considerations which have no legitimate application in the case. The right of peremptory challenge gives the means of keeping from the jury persons of that kind, which the challenge for cause does not afford, and parties should be permitted to examine persons called to act as jurors, within reasonable limits, to the end that the peremptory challenges may be used intelligently. It was the privilege of the state to ex

clude from the jury, so far as its right to peremptory challenges extended, all persons who are prejudiced against the infliction of the death penalty; and it was not an abuse of the right of examination to permit inquiry as to the views of the persons summoned as jurors, on that point." "The office of the peremptory challenge is to protect the defendant against those legally competent, but morally or otherwise unfit or unreliable, to try the particular case, and to deny a full and fair examination of a juror in order to wisely exercise the peremptory challenge would be practically to nullify the right; for of what avail would a peremptory challenge be, if exercised at random, or blindly and without reason? The right to peremptory challenge is the last precious safeguard of a fair trial left to the one charged," etc. "The defendant should be permitted great latitude in examining jurors, so as to be in position intelligently to exercise his challenges, and whenever there is a fair doubt as to the propriety of a question it is better to allow it." State v. Dooley, 89 Iowa, 584, 57 N. W. 414; Hale v. State, 72 Miss. 140, 16 South. 387; State v. Tighe, 27 Mont. 327, 71 Pac. 3; State v. Godfrey, Brayton (Vt.) 170; People v. Car Soy, 57 Cal. 102, 103; State v. Bresland, 59 Minn. 281, 61 N. W. 450; Towl v. Bradley, 108 Mich. 409, 66 N. W. 347; State v. King, 174 Mo. 655, 658, 74 S. W. 627; State v. Mann, 83 Mo. 595, 599.

Coming to the broader merits of the case, the indictment was assailed on demurrer for insufficiency, especially for uncertainty in employing the term "entry" as the means by which the government was to be defrauded of the title to the lands under the homestead acts. The contention was that the term "entry," so employed, is a variable quantity. In Hastings, etc., R. R. Co. v. Whitney, 132 U. S. 363, 10 Sup. Ct. 114 (33 L. Ed. 363), the court said:

"Under the homestead law three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting forth the facts which entitle him to make such an entry; second, he must make a formal application; and, third, he must make payment of the money required. When these three requisites are complied with, and the certificate of entry is executed and delivered to him, the entry is made the land is entered."

So here it was contended that the term "entry" might be referable to the preliminary act above designated, on which no conviction could be had, for the palpable reason that the thing done would be quite ineffective to obtain the title to the land. Dealy v. United States, 152 U. S., loc. cit. 545, 14 Sup. Ct. 680, 38 L. Ed. 545. In the Dealy Case the court held that notwithstanding the term had its technical use, which might mean "a mere preliminary application," it also had its popular use, implying that the proceeding as a whole constituted "the complete transfer of the title." And because of the allegations of the indictment there indicating that the term was employed in its more popular sense, evidencing a purpose to obtain "a complete transfer of title," the indictment was held to be good. So here, as it is claimed, the indictment clearly enough indicating that the scheme of the conspiracy was to obtain the title to the land, the demurrer was rightly overruled. Therefore, to sustain the indictment, the proof must respond to the allegation, showing, beyond a reasonable doubt, that the ultimate purpose of the alleged conspiracy was to obtain title to the land, to the use of the defendants or the Nebraska Land & Feeding Company.

A careful reading of the vast volume of testimony in this record has satisfied my mind that, indulging the largest latitude to the jury in

drawing inferences and conclusions, the very utmost the evidence warrants was a finding that it was the mind of some of the defendants, by bringing about the homestead entries in question, to obtain leases from the homesteaders, with a preferential right to buy the lands from them. after patents were obtained, should the entrymen conclude to sell. The evidence shows quite clearly that the defendants, who are claimed to have been the real exponents of the alleged conspiracy, understood what the courts of authority had held to be permissible that they had a right to loan or advance to persons eligible to make homestead entries money therefor; that they could make valid contracts with the settlers for leasing the lands, as a means of refunding such advancements; and that they violated no law in the request that if, after acquiring patents, the entrymen concluded to sell, they would give the parties who thus aided them preference as purchasers.

That it was desirable to the Nebraska Land & Feeding Company to protect for the time the ranges contiguous to its ranch for its use, by having near not unfriendly neighbors, and to obtain leases from them, and that it was desirable to obtain the land by purchase if the homesteaders concluded to sell after acquiring title, may be conceded. It is evident, however, from the whole trend of the trial, as it is from expressions in the majority opinion, that if what some of the defendants contemplated was to obtain the use and occupancy of the lands for grazing purposes, and the preliminary entries had the effect to withdraw for the time being the lands from entry by bona fide homesteaders, the government was defrauded, and the conviction should be sustained. This unfolds the radical vice in the conviction of these defendants. As already stated, the demurrer to the indictment should have been sustained, but for the conclusion that the term "entry" was employed in the indictment in the popular sense of such entry as would effect "the complete transfer of title," as in the Dealy Case. If the purpose had been by preliminary entries to continue the mere occupancy of the land by the cattle company during the period prior to the issuance of patents thereon, whereby other homestead beneficiaries would have been deferred, it might have been a fraud on the government, as was held in Stearns v. United States, 152 Fed. 900, 82 C. C. A. 48; but the indictment in such case would have had to show that the term "entry" was used in such limited technical sense. There was no written agreement in evidence between any of the defendants and any of the entrymen to convey the lands in question to the cattle company, or any one else. There was no evidence in pais to the effect that on furnishing the entrance money, the expenses of the entrymen, or any bonus to be paid by the defendants, the entrymen were after final proof or patent to relinquish the title to the defendants, or either of them. The existence of such understanding was left in the wide field of mere conjecture and speculation-inferences to be drawn by the unrestrained and unguided notions of the jury, by impressing them with the belief that in the matter of preliminary entry and occupancy some of the entrymen had no bona fide purpose to Occupy and acquire the land as a personal homestead.

This leads to a consideration of what observation profoundly impresses me with the conviction is a gross and dangerous abuse in re

cent practice of prosecutions under section 5440, known as the "Conspiracy Statute." It having been held in Clune v. United States, 159 U. S. 590, 16 Sup. Ct. 125, 40 L. Ed. 269, that notwithstanding the act be forbidden by a special statute, prescribing a lesser punishment for its violation, such as a fine without imprisonment, the same violation of law, if compassed by two or more persons combining therefor, under section 5440 would subject the offender to severer punishment, as for a felony, it has become almost the habit of the government prosecutors to invoke this conspiracy statute under every colorable pretense, especially in respect to a class of offenses which the Department of Justice have been zealously prosecuting. By combining a large number of suspected offenders in one indictment under a charge of conspiracy, with the wide range such an inquiry may take, the character of evidence which may be admitted peculiar to such investigation, the prejudice roused in the mind of jurors against some individual defendant being unwittingly carried over and imputed to another defendant against whom, separately considered, there may be no positive evidence of guilt, it is made more than possible to convict an innocent man, unless the courts stand unflinchingly as the sword of justice between him and his pursuers.

There were over 30 counts in this indictment predicated of as many different homestead entries, each entry presenting its own peculiar facts; other counts charged subornation of perjury connected with other entries; and still another count charged forgery in a certain power of attorney pertaining to a homestead entry. All these different issues were tried, in solido, against these defendants to the same jury, in a trial extending over a month, in which a multitude of witnesses was examined. With the confusion incident to such a mass of testimony, some more or less inculpatory of some of the defendants, the court letting every incident of dealings between some of the defendants and some particular entrymen, and conversations with persons not present or named in the indictment, go to the jury, on the suggestion that from the entire mass the jury, as judges of the ultimate facts, might determine the existence of the alleged conspiracy among all the defendants, it is made manifest how through lack of intelligent discrimination, and a charge dealing in generalities without specifically directing the attention of the jury to the special facts respecting the particular entry or defendant, the jury found all the defendants guilty on every count submitted to them; and but for the fact that the court of its own motion took from their consideration a few counts there is no reasonable doubt that the jury would have returned a verdict of guilty on all of them. The defendants were regarded by court and jury as a mere mass, not dissoluble.

Take, for instance, the first count of the indictment, predicated of the entry made by Clyde R. Beckwith. The charge is that he was induced by the defendants to make an entry of 640 acres under the Kinkaid homestead act, for the purpose of acquiring the title for the use and benefit of the defendants and the Nebraska Land & Feeding Company; that prior to the making of his filing affidavit he had entered into a contract or agreement with the defendants, to the effect that the title which he might acquire from the government and the use