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and benefits of said lands should inure to the benefit of the defendants and said land company. I have read carefully the entire testimony of the witness Beckwith, introduced by the government. The very most that can be predicated of it is that the filing fees were probably advanced by the defendant Comstock; and it may be further conceded that his expenses were paid by some one, whom the defendant could not state. When inquired of as to whether anything was said about a note, he said that other parties were signing notes for expense money, and he signed one. This witness was more or less familiar with the location and character of this land, as he already had a homestead entry thereat; and when it was proposed to select the land for him he gave direction to have it placed near his other land. He said: "I think it joins on the south." He further testified that Comstock owed him for hay on his homestead. While he made no improvements on the land, he held his homestead adjoining it, which he had proved up before the passage of the Kinkaid act. There is not a word of testimony to warrant the remotest inference that this man agreed to make this entry in the interest of the defendants, or either of them, or that he even had any understanding with them that at any time he was to lease the land or convey it to them.

It was shown that one McElroy was approached by the defendant Comstock, and asked if he did not wish to make entries of land, and he said he did; and it may be conceded, for the purpose of this consideration, that McElroy undertook to induce other parties to make such entries, and that he took them to the land office at the instance of Comstock. When inquired of as to what Comstock said while the witness and other parties, including Beckwith, were in the room. where the affidavits were being made, his answer was: "Comstock said: 'You are not taking this land for me. It is for your own use, to do what you please with it.'" This witness said that he did not take his family upon the land because there were no facilities there for his children to go to school, but that he had been upon and made improvements upon the land; that he took there bedding, stoves, and dishes, and his understanding of the law and practice was that he was not required to take his family on the place to live; and that he lived up to the requirements of the homestead laws as he understood them. The following question was asked him: "In all or any of the conversations. that you had with Mr. Comstock, or any other of the defendants, if you had any, was there any talk-was there any agreement or understanding in any way, shape, or form, that these entries of yours, or anything else, were to inure to the benefit of Mr. Comstock, or to be taken for him or any of the defendants?" He answered, "No." He gave Comstock a note for the money advanced for him.

By the introduction of McElroy as a witness on behalf of the government, it vouched for his integrity and credibility. There was no contradiction of the testimony of Beckwith, or of McElroy, who was claimed to be acting on behalf of Comstock. And yet the defendants were found guilty under this count of having as conspirators entered into an agreement with Beckwith whereby they were to obtain for themselves and the cattle company the title to this land. The only explanation of this extraordinary result is the confusion into which

the minds of the jury were brought by such a multiplicity of counts, and the impressions made upon their minds by a mass of testimony respecting other entries and statements of parties wholly disconnected from the Beckwith entry. The court should have directed a verdict of not guilty on this count.

The fourth and thirty-third counts of the indictment charge one Fred J. Houghton as a conspirator with the defendants to obtain the title to certain lands by homestead entries. The only witness offered by the government to prove Houghton's connection with the alleged conspiracy was Houghton himself, and then followed that up by putting in evidence all the conversations he had with certain entrymen. The whole substance of his testimony is that he had been, or was, engaged in procuring or assisting homesteaders in making locations; that some time prior to the date of the alleged formation of the conspiracy, he met the defendant Richards, who said that he wished to do a little colonizing, or some such word, and asked him if he might not locate some homesteads in the neighborhood of his ranch. The witness answered that, on account of the condition of his family, he did not want to be from home. At a later conversation Richards said to him that he wanted him to make some homestead locations in that part of the country, and if he would locate people there he would willingly pay him so much for each location. Afterwards he saw Comstock in the presence of Richards, when the latter said to him, in order that there might be no misunderstanding, he wanted the witness to repeat the understanding between them in the presence of Comstock.

"I told him my understanding was that I was to receive $50 for each location, and Mr. Richards said, 'No, that wasn't it; that was to cover filing fee and all,' and I think that was all the conversation that was had there in the presence of or with Mr. Comstock."

Afterwards the witness procured eight men to make homestead applications. A part of the men came to him and solicited an opportunity to go down there and file themselves. He told them that if they wanted to make homestead entries, perhaps, he could place them where they could get a piece of land that would be of benefit to them some time; if they were not able to make the trip and improvements, they might perhaps have assistance to do it.

"I don't think I said to them that anybody would assist them. I don't know whether I used Mr. Richards' name, or whether I used the ranch name, but that they would put the improvements on the place for them, and if they made their proof, and wanted to sell the land, that they wanted the first opportunity to purchase their land, and, if they did so, the money to be paid for improvements would be applied on the purchase price; otherwise, Mr. Richards thought he ought to have something for the use of his money. * He said that I

could tell any people that I located there that he would put the improvements upon the land for them, and that in the event of their proving up, if they wanted to sell, he would like to have the first opportunity to buy, and would buy at a reasonable figure, if they agreed to sell. He also said further that he would be glad to have any one come over there and enter, or make a homestead for their own use and benefit."

This is the substance of his whole testimony touching the relations between defendants and himself, and, of course, it was the only understanding between the entrymen and Richards. I submit that such an

arrangement is not forbidden by law. On the contrary, it has been specially ruled that the right to loan and borrow money upon the security of the land, or mortgage the same, and to even agree to lease it before the issue of the patent and final certificate, is permissible under the homestead pre-emption law. Hartman v. Butterfield Lumber Co., 199 U. S. 336, 26 Sup. Ct. 63, 50 L. Ed. 217; Ware v. U. S., 154 Fed. 583, 84 C. C. A. 503; Lewis v. Shaw (C. C.) 70 Fed. 294; Hafemann v. Gross, 199 U. S. 342, 26 Sup. Ct. 80, 50 L. Ed. 220.

Of all the entrymen obtained by Houghton, Vaughn alone is the only one who testified that he did not make entry for the honest purpose of acquiring a homestead. All the other entrymen are not complained of. The witness Melcher, introduced by the government, testified that he took the land in good faith and intended to live on it. The fact that Beckwith afterwards stated that he did not intend to live on the land by no rule of law or principle of common right could affect the defendants, unless the evidence went further and showed that the defendants were aware of his purpose not to comply with the law when he made the entry, and there is no such evidence.

It does seem to me that the request made, as shown by the seventeenth assignment of error (Record, page 3052), in respect to the Houghton transaction, should have been given:

"The defendants, or any of them, had a perfect right to advance money to entrymen to pay filing fees, and to agree that, in the event the entryman desired to sell after he had proved up and the defendant then desired to buy, such advances should be credited on the sale, or, if no such arrangement was thereafter made, the money would be refunded, and that such an agreement would not, in and by itself, be a violation of any law of the United States."

This the court refused, without adding the words:

"But such fact may be considered in connection with the other evidence in determining the existence of the alleged conspiracy agreement."

Thus it is made manifest how it was that the jury could return a verdict of guilty on all of the counts of the indictment, including those respecting the Beckwith and Houghton transactions, by coupling those incidents up with other unrelated transactions. In the arrangement Houghton was authorized by Richards to make with the entrymen there was not an element of fraud in it. If so, it could not by any principle of known law be made criminally wrong, simply by considering that arrangement "in connection with the other evidence in determining the existence of the alleged conspiracy or corrupt agreement."

Suppose the counts predicated of the interests procured through Houghton had stood alone in the indictment; would not the defendants upon Houghton's testimony have been entitled to a peremptory instruction to return a verdict of not guilty? Should this right be denied them on the suggestion of the government's counsel that transactions with other entrymen were not in good faith, whereby they intended to obtain title to their lands? In other words, if the Houghton transactions in and of themselves were lawful and honest, they could not have been a part of a fraudulent scheme to defraud the government.

The fifth count of the indictment is another like illustration. It is predicated of an entry made by George W. Guilford, who was introduced as a witness by the government. He resided at Dunlap, Iowa, and made his filing upon the land after a conversation with one James Hull. Railroad tickets were provided by Hull, and a number of men went with him to Nebraska, and were taken out to see the lands. This man Hull was acting for and in the interest of one Thomas A. Huntington, who is charged as a codefendant in the conspiracy, but tried in a different group. Huntington was in no wise connected with the ranch of the Nebraska Land & Feeding Company. The ranch in which he was interested was 20 miles away. The expenses of the trip made by Guilford were doubtless paid by Huntington. The entryman made a lease of the land to Huntington, under the agreement that the expenses so advanced were to be taken out of the lease money. The whole conversation detailed by this witness was with Huntington alone, and was to the effect that Huntington said he was not buying or investing anything in lands. At the end of six months the witness returned, his expenses being paid as before. He testified that he did not intend to make an actual settlement-that is, to move his family on the land; that his understanding was that if he visited the claim once in six months, occupied it with cattle, built a shanty on it, and made some improvements and so on, such would be all that he was required to do.

"Q. Who gave you that information? A. Well, sir, I don't know how I got that hardly. I got it from several different parties."

He further testified that he entered the land for the purpose of getting a homestead, the same as other people did, for his own benefit. If there was anything in it, he wanted to get it out of it. Having put Guilford on the stand, the government was certainly bound by his testimony that he was acting in good faith. There is not a particle of evidence that this witness either acted or filed on the land for the benefit of the defendants or the Nebraska Land & Feeding Company. His entry was not within 20 miles of the Spade Ranch, for which the defendants here are claimed to have been acting. The defendants did nothing to interfere with or prevent the good intentions of this entryman. It is impossible under his evidence to perceive how his entry could inure to the benefit of the defendants, to enable them to obtain the title to the lands; yet the jury returned a verdict of guilty on this count.

Statement of the Hulls.

As already stated, Thomas Huntington was interested in the ranch known as the "Huntington Pasture," 20 miles from the Spade Ranch. He had no interest in or connection with the Spade Ranch, nor had the defendants any interest in or connection with the Huntington Pasture. The evidence tends to show that, prior to the time laid in the indictment for the formation of the conspiracy in question, Huntington had been engaged in obtaining and selling lease contracts on homestead entries. About the time of the passage of the Kinkaid act he met with one James Hull, who had been engaged to some extent in

securing homestead entries for soldiers, and arranged with him that, if he secured soldiers entitled to make entries under said act, he would sell leases thereon at $100, to be divided between them. The government used said Hull, and his brother Irvine who stood in with him in said arrangement, as witnesses, who testified, over the objections of the defendants, to conversations had with Huntington, and what they said to intended entrymen obtained by them. The admission of this apparent hearsay testimony assumed, first, that Huntington was in league with the defendants; second, that the Hulls, through Huntington, were the agents of the defendants; and, third, that the lands were entered by parties obtained by Hull for the use and benefit of the defendants and the land company, for the purpose of defrauding the government out of the title thereto. One of the Hulls testified that at one time Huntington said he thought he could sell some of the leases to the defendant Comstock. It must be conceded that, unless there was an existing conspiracy between all of the defendants and Huntington to effectuate what Huntington was seeking to compass through the Hulls, his statements made to them in the absence of the defendants were mere hearsay. There was no evidence of any direct dealing or understanding between any of the defendants and the Hulls. There is no evidence of Huntington having been authorized by the defendants to employ the Hulls, or to procure leases for them. There is no evidence that the defendants obtained any leases from the homesteaders obtained by the Hulls.

The dernier resort to justify the admission of this evidence is the statement of Irvine Hull that, when he took some of the entrymen procured by him to the office in Nebraska where the preliminary entry affidavits were made, Huntington and Comstock were there, and the samé stenographer was used in preparing the declaratory statements. In the absence of any proof that Comstock furnished the money for making such proofs, without proof that the entries were made within or adjacent to the Spade Ranch, or that the defendants obtained the possession of any of said land so entered by the Hulls, I submit that in permitting the Hulls to detail in evidence all that Huntington said to them and what they said to the entrymen, in the absence of the defendants, is indefensible. To hold otherwise is to reverse the maxim of the law: "In favorem vitæ, liberatis, et innocentiæ, omnia præsumuntur." This court, in Vernon v. United States, 146 Fed. 121, 76 C. C. A. 547, said:

* Assuming that the jury would be justified to draw either of the inferences, the rule of law is that in case of conflicting presumptions that which assumes innocence must be adopted."

So in United States Fidelity & Guaranty Co. v. Des Moines National. Bank, 145 Fed. 273, 74 C. C. A. 553, the court said:

"A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature and are so related to each other that it is the only conclusion that can fairly or reasonably be drawn from them. If the facts are consistent with either of two opposing theories, they prove neither."

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