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such purpose, he consulted with an attorney respecting the legality of contracts with soldiers concerning lands to be acquired under the homestead laws. The trend of this advice was that he could make contracts with them under which he could furnish the money to defray their expenses in making such entries and the necessary improvements on the lands, and that they might or might not, at their pleasure, convey the lands to him after they had obtained the title; but he could not make a contract that they should enter the lands for his use and benefit. He took several parties of these soldiers and the widows of deceased soldiers out to Ward county, where they made affidavits of application for such lands and effected such entries. He paid all the expenses of these trips, and for the entries, and constructed what are called “shacks” on the lands.
In the fall of 1903 he went to Ohio and organized the last party, composed of 12 widows of old soldiers, who made the entries in question. A form of contract was drawn up by a Mr. Comstock, a lawyer and comrade of the defendant, a resident of the locality in Ohio where these homesteaders lived, to be signed by them and the defendant, the substance of which was that the applicant agreed to go to the United States land office at Minot, N. D., and make due and legal entry upon lands selected for them by the defendant under the provisions of the homestead laws, and that the applicant would duly appear and make final proof and perfect title to the land, and when the title was perfected they agreed to sell the land to the defendant for the sum of $200, plus the expenses of one trip to the land office and return to Ohio; the $200 to be paid upon delivery of the deed. The defendant was to select and locate the land and make the improvements on the same before final proofs; the locator agreeing that until such deed was delivered as aforesaid, the defendant should have a prior lien upon the land for improvements so made and for money advanced for traveling expenses. This contract, it is conceded, was nonenforceable. The tenth count of the indictment was based upon an entry made by one Hall in 1902, under a claimed parol understanding with the defendant.
The defendant was indicted May 29, 1905, for subornation of perjury in procuring said entrymen of 1903 to make false affidavits before the register of the land office to secure said locations. The indictment contained 13 counts. Verdicts of guilty were returned on counts numbered 2, 3, 6, 7, 8, 9, and 10, and he was acquitted on the other counts. He was sentenced to the South Dakota penitentiary for a term of one year and to pay a fine of $300.
The first error assigned goes to the sufficiency of the indictment, based on the following objections: (1) That the indictment fails to charge that the land described at the times when the affidavits in question were made were public lands of the United States, over which the register and receiver of the land office at Minot had jurisdiction; (2) that the allegation “subject to entry at said land office" if referable to the lands at all is a mere conclusion of law; and (3) the indictment fails to state a case in which any oath was required or permitted to be administered.
The allegations of the indictment in the particulars assailed, common to all the counts, after laying the venue, are that the defendant in said district within the jurisdiction of the court:
"Then and there unlawfully did willfully and corruptly suborn, instigate and procure one Charles S. Ely to appear in person before the register and receiver of the United States land office at Minot, in the district aforesaid, and then and there, before T. E. Fox, then and there the receiver of the said land office, to make and subscribe, before him, the said T. E. Fox, receiver as aforesaid, a certain oath and affidavit in writing then and there required by the laws of the said United States, in support of a certain application in writing of him, the said Charles S. Ely, then and there made to the register of the said land office; that is to say, a certain application in writing to enter, under the homestead laws of the United States, subject to entry at the said land office (here is set out a description of the land), and by such oath and affidavit, so made in support of said application to enter the said lands, falsely to depose and swear, among other things in substance, and to the effect,” etc.
This is followed by a statement of the contents of the affidavit made by the applicant, with allegations as to the falsity of the matters sworn to, the corrupt procurement thereof by the defendant, with avermert of the authority of said Fox to administer said oath.
The application in writing, the allegation clearly enough discloses, was to make entry of homestead lands, specifically described, under the homestead laws of the United States subject to entry at the United States land office at Minot, N. D. The clear intendment is that the lands were public lands, and as such were at the time subject to entry at said United States land office. The allegations in this respect were quite as full and specific as those contained in the indictment in Stearns v. United States, 152 Fed. 900, 82 C. C. A. 48, held by this court to be sufficient after verdict. It was there said, in substance, that it is common knowledge that public lands, like post office sites, military reservations, and the like, are not within the ordinary meaning of public lands of the United States and are not subject to entry or sale for any purpose, and therefore they are never understood to be in contemplation when speaking of entries of lands for homestead purposes; that in respect of lands bearing mineral, though nonapplicable to homestead entry, persons may nevertheless compass a fraud upon the government by obtaining possession of them under fraudulent affidavits.
The essential requirement of the law is that the charging part of the indictment shall sufficiently advise the accused, in advance of the trial, of the nature and character of the offense he may be required to come prepared to meet. When it does this, although it may be inartificially drawn or defective in matters of form, yet, if the defendant go to trial without interposing a motion to quash or demurrer, the statute (section 1025, Rev. St. U. S. (U. S. Comp. St. 1901, p. 720]) interposes, which declares that:
"No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the :rial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form cnly, which shall not tend to the prejudice of the defendant."
So Mr. Justice Brewer, in Dunbar v. United States, 156 U. S. 185, 192, 15 Sup. Ct. 325, 328, 39 L. Ed. 390, said:
"While it may be true that a defendant by waiting until that time (after verdict) does not waive the objection that some substantial element of the crime is omitted, yet he does waive all objections which run to the mere form in which the various elements of the crime are stated, or the fact that the indictment is inartificially drawn. If, for instance, the description of the property does not so clearly identify it as to enable him to prepare his de fense, he should raise the question by some preliminary motion, or perhaps by a demand for a bill of particulars; otherwise it may properly be assumed as against him that he is fully informed of the precise property in respect to which he is charged to have violated the law.”
The defendant did not, either by motion to quash or demurrer, invite the court's attention to any defect in the indictment; but on the trial objected to the introduction of any evidence by the government because of the claimed defects. This practice is not recognized in criminal procedure. United States v. Harmon (D. C.) 45 Fed. 414.
The rigors of the ancient common law in exacting much particularization in the description of the offense of perjury and subornation of perjury have been greatly modified by sections 5396 and 5397, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3655).
The allegation of the indictment as to the authority of the officer to administer the oath that “he, the said T. E. Fox, then and there being such receiver as aforesaid, and having due and competent authority to administer such oath to the said Charles S. Ely," was clearly sufficient within the provisions of the foregoing sections of the statute.
Error is assigned to the action of the trial court in admitting in evidence the affidavits of the proposed homesteaders, for the procuring of which the charge of subornation of perjury is predicated. The contention of defendant's counsel is that they were not both subscribed and sworn to before the register or receiver of the land office. They were sworn to before the proper officer, but the contention of defendant is that they were not also subscribed before him. The argument in support of this contention is that section 2290, Rev. St. U. S. only required that:
“The person applying for the benefit of the preceding section (that is the section authorizing the entry) shall, upon application to the register of the land office in which he is about to make such entry, make atlidavit before the register or receiver," etc.
As this statute did not require that the affidavit should be subscribed before the register or receiver, in consequence thereof it occurred in instances that the application for entry would be signed by a party entitled to file as a homesteader upon certain representations made to him, but would be sworn to by another party presenting himself before the register or receiver. So that in prosecutions for making false affidavits identity between the party signing and the party swearing to it could not be shown.
It is claimed that to obviate this practice and abuse, on March 3, 1891 (Act March 3, 1891, c. 561, 26 Stat. 1097 (U. S. Comp. St. 1901, p. 1389]), Congress amended said section as follows:
"That any person applying to enter land under the preceding section shali first make and subscribe (italics the court's) before the proper officer and file in the proper land office an affidavit,” etc.
The contention is that before the party was entitled to make the entry he should both make and subscribe to the affidavit before the proper officer; that the making of the subscription before the proper officer is just as essential as that he should make the oath before him; that, as the authority of the register or receiver to administer oaths is limited to matters connected with entries of public lands, they are not authorized to administer oaths for any other purpose or in any other manner; and that the certificate to the affidavit must both state that it was subscribed and sworn to before him.
The statute, however, declares:
"That if the said applicant making such affidavit or oath, swears falsely as to any material matter contained in said proofs, affidavits, or oaths, the said false swearing being willful and corrupt, be shall be deemed guilty of perjury,” etc.
While it may be conceded that the purpose of Congress in so amending the statute as to require that the affidavit should be subscribed and sworn to before the 'officer might be for the purpose of such identification, it is rather evidential in character. The substantive offense denounced by section 5392 of the statute is that:
"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, etc., or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury."
In other words, the corrupting act consists in taking the false oath before a competent tribunal or officer in a case in which a law of the United States authorizes an oath to be administered.
Aside from this, however, the testimony of some of the witnesses, especially that of Mr. Hall, whose affidavits were the predicate of one or more counts on which the defendant was convicted, showed that the witness both subscribed and swore to it before the register of the land office. That is sufficient in this respect to support the verdict on those particular counts.
Error is also assigned of the action of the trial court respecting the use made in evidence of the tract book kept in the land office, and the statements and explanations made by the witness Sanborn, the register of the Minot land office, touching memoranda in this book. In the trial of the case it became necessary for the government to show that the particular land in question was vacant public land, and subject to homestead entry, at the time of the presentation of the preliminary affidavit under investigation. To this end, said Sanborn, the custodian of the tract book in the office, was introduced as a witness, who made explanation respecting certain abbreviated entries therein. Objection was interposed by defendant's counsel against the admission of the book itself, on the ground that it was an unauthorized book, that the entries therein were unintelligible; and objected especially to a notation on some of the tracts to the effect that the entry thereof was under investigation. As the latter matter was withdrawn by the government it need not be considered.
Section 2295, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1398), declares that:
“The register of the land ofice shall note all applications under the provisions of this chapter, on the tract books and plats of his office, and keep a register of all such entries, and make return thereof to the general land office, together with the proof upon which they have been founded."
The tract book in question was an official register authorized by the statute, and was competent evidence for the purpose for which it was introduced. The notations were in abbreviated form, and the register explained their import. For example, certain portions of a section which had been entered or the entry canceled were indicated by the words and figures "SE4" and "SW4," and the like, which he stated meant the southeast quarter or the southwest quarter of the section. The objection to this was that the book, if regarded as a record, must speak for itself. While some courts have held that under special statutes in respect of the assessment and sale of lands for taxes such abbreviations are insufficient, we are of opinion that the common use of such abbreviations on books like those kept in the land offices warranted the court in saying that the knowledge of their import is so universal among the people as not to have required any explanatory testimony, aliunde the record. Some of these abbreviated notations on the face of the books consisted of the letters "F. C.," which the register testified indicated that the final certificates had been issued on the entry; the abbreviation “H. E.” meant homestead entry; “S. D. S.” meant Soldier's Declaratory Statement; the word “Can.” meant canceled entry; "rel." meant relinquished entry.
The statute only requires that the register shall “note” on the tract book applications, and keep a register of such entries. The form and size of such tract book, as every person knows who has had occasion to visit the land office, make it quite impossible that the limited space allotted to each subdivision of land should admit of the notations indicating the history of the acts done respecting the given quarter section being written out in full. Immemorial usage in this respect, so well known to the public, warrants the method. The notations made by the officer are not muniments of title, but merely an indication to him as to the status of the land on his tract book. If, therefore, the necessary abbreviation expressed to the clear understanding of the keeper of the book what that status is, no sensible reason occurs why the register may not by parol explain what the abbreviated notations stood for. In other words, the only purpose of this testimony being to show whether or not the given tract of land was subject to entry when the application to file was made, it is competent for the custodian of the book, familiar therewith, to state that the notations showed the land was open to entry. Furthermore, after the defendant had investigated, as the evidence tends to show, the condition of the land and procured the affiants to make application therefor, as subject to homestead entry, and the entry was so made, it hardly lies in his mouth on trial for procuring false affidavits to gainsay the purport of the words noted on the tract book which were there at the time of the entry. He could not possibly have been prejudiced by the evidence, because he