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understood when the entry was made that the lands were subject to entry as and for a homestead.
We are now brought in this discussion to consider questions respecting the action of the court in excluding and admitting certain testimony. It is to be kept in mind throughout this investigation that there was involved under each count of the indictment two pivotal issues. There must have been perjury committed by the designated affiant and the procuring of the affidavit by the defendant. An indispensable element of the first postulate is that the imputed false statement by the affiant must have been willfully and corruptly made; and in the second instance the defendant must have procured the making thereof with knowledge of the fact that the affiant was swearing falsely.
The contention of the defendant, inter alia, is that up to and including the time of the making of the filing affidavits the defendant understood, and so the affiants were given by him to understand, that the construction placed by the land office department on the homestead laws in respect of soldiers and widows of soldiers, such as the entrymen in question, was ihat they were not required to make actual settlement upon and cultivate in person the land to entitle them to make final proof and obtain a patent; that it was permissible for the defendant to furnish them the money to make such entry and the improvements thereon; and that they might thereafter, at their option, deed him the land at a given price plus the money so advanced by him. Quite different is the crime of perjury as applied to such situation from the instance of a conspiracy to fraudulently obtain the use and title to public lands under simulated homestead entries. In the case at bar the crucial question is the willful, corrupt swearing of the applicant, and the procurement thereto by the defendant with guilty knowledge of the false statement.
To support his contention, in part, the defendant offered in evidence what is known as Exhibit A in the record, designated “Instructions. Department of the Interior. General Land Office. Washington D. C., July 7, 1904. Registers and Receivers, U. S. Land Offices”—which is as follows:
“Sirs: The Department held December 7, 1903, in the Anna Bowes case (32 Land Dec. Dep. Int. 331) as follows:
" "The widow or minor children of a deceased soldier or sailor, making homestead entry under section 2307 of the Revised Statutes [U. S. Comp. St. 1901, p. 1417), must comply with the requirements of the homestead laws as to residence and cultivation to the same extent as a soldier or sailor making entry under section 2304.
“The right to make entry under section 2307 is not transferable, and any contract entered into either before or after entry, which contemplates the sale thereof, is in violation of law.
* Directions given that all persons having uncompleted homestead entries made under section 2307 be immediately notified, by registered letter to the last known address of the party making the entry, as shown by the records of the land office, that if they desire to retain such entries they will be required to begin actual residence upon the land within six months from the issuance of such notice, or, if they so elect, they will be permitted to relinquish their entries, without prejudice to their homestead rights, by giving notice of such election within the same time.'
"(1) You are therefore directed to at once notify, by registered letter addressed to the last known address of the entryman as shown by your office records, each person having an uncompleted homestead entry made under section 2307 of the Revised Statutes:
“(a) That he is required under his existing entry to comply with the requirements of the homestead law as to residence and cultivation to the same extent as is required of a soldier or sailor making entry under section 2304 of the Revised Statutes; that is, for such period as, when added to the military or naval service relied upon, shall equal the required period of five years, with this exception, that where a soldier, whose service is depended upon, died during his term of enlistment, the whole term of his enlistment will be credited upon the period of residence and cultivation required under the homestead laws.
“(b) That the right to make homestead entry under section 2307 of the Revised Statutes is not transferable, and that any contract entered into, prior to the completion of final entry, which contemplates the sale of the land, is in violation of law.
"(c) That under departmental ruling he is allowed six months from date of your letter of notification within which to begin actual residence upon the land heretofore entered, and that should he fail to begin such residence prior to the expiration of such period of six months and thereafter maintain same, his entry will be subject to contest and cancellation for abandonment.
"(d) That should be so elect he will be permitted to relinquish his existing entry without prejudice to his right to make another, provided he shall file in your office, within the above-mentioned period of six months, a relinquishment of all right, title, and interest under his existing entry.
“(2) Upon the filing in your office of such a relinquishment you will immediately cancel the entry and hold the land formerly covered by such entry subject to disposal as in other cases made and provided for.
"(3) Until the expiration of the period of six months no existing entry under section 2307 of the Revised Statutes will be subject to contest upon the ground of abandonment.
“(4) At the expiration of said period of six months you will report each case separately to this office with proof of service of notice as above required upon the entryman, for filing with the papers relating to such case and for such further action as the facts of the case may warrant."
To the admission of this circular the district attorney objected for incompetency, irrelevancy, and immateriality. In that connection he offered:
“To admit upon the record that formerly the opinion prevailed in the local office at Minot, as testified to by some of the witnesses, that residence was unnecessary on the part of widows of soldiers entering lands under the homestead law, and that on July 7th instructions were received from the General Land Office correcting that impression and reversing it, and instructing the local land office to notify all such entrymen to establish a residence within six months, and that such notices were sent out by the local land office to each of the entries of that character involved in this case. Beyond that, we object to the introduction of this exhibit for the reasons stated, and that its contents are hearsay and not admissible under any of the issues involved here."
The court said:
“I think there is matter in this exhibit which would be highly prejudicial if it was received, and, in view of the admission which the government has made, the objection is sustained.”
We are inclined to the opinion that this letter of instructions from the land office department was of the nature of a regulatory rule of the Interior Department, under the immediate control of the Commissioner of the General Land Office. Mr. Justice Brewer, in Caha v. United States, 152 U. S. 221, 222, 14 Sup. Ct. 513, 517, 38 L. Ed.
415, speaking of rules and regulations prescribed by the Interior Department not having been formally offered in evidence, said:
"We are of opinion that there was no necessity for a formal introduction in evidence of such rules and regulations. They are inatters of which courts of the United States take judicial notice. Questions of a kindred nature hare been frequently presented, and it may be laid down as a general rule, deducible from the cases, that wherever, by the express language of an act of Congress, power is intrusted to either of the principal departments of government to prescribe rules and regulations for the transaction of business in which the public is interested, and in respect to which they have a right to participate, and by which they are to be controlled, the rules and regulations prescribed in pursuance of such authority become a mass of that body of pub lic records of which the courts take judicial notice"-citing a number of authorities.
Section 453, Rev. St. U. S. [U. S. Comp. St. 1901, p. 257), provides that:
"The commissioner of the general land office shall perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government."
Section 2478, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1586), declares that:
"The commissioner of the general land office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title not otherwise specially provided for."
The document in question was a pronouncement by the General Land Office Department establishing a permanent regulation respecting entries of the public lands pertinent to the entries in question. It is observable that in the statement of Mr. Justice Brewer, supra, he did not say that such a regulation from the department could not formally be introduced in evidence, but that even without such formal presentation the court should take judicial notice thereof. How was the defendant to obtain the benefit of this regulation if it were not placed before the jury? The only way he could get a ruling on its legal effect and competency was to present it to the court as a matter of evidence to go to the jury. The court did not exclude it on the ground that it need not be formally offered in evidence as the court would take judicial cognizance thereof and in its admission or its direction to the jury define and limit its effect; but it was excluded because the district attorney consented that it might go upon record, as an admission that formerly the opinion prevailed in the local office at Minot, etc., thus undertaking to limit the language and purport of the regulation by his own interpretation. The court having thus barred it from the consideration of the jury for any purpose, after it was pressed for consideration, it was neither respectful nor necessary for defendant's counsel to urge it in other manner to secure the benefit of the exception taken to the court's ruling. Long-Bell Lumber Company v. Stump, 86 Fed. 583, 30 C. C. A. 260; Glover v. United States, 147 Fed. 431, 77 C. C. A. 450. The defendant was entitled to have the jury consider the whole regulation and determine whether or not it was an implied admission by the department of government intrusted with the matter of regulating such entries of the public lands that hitherto, up to the ruling in the Anna Bowes Case, actual settlement and cultivation upon such lands by soldiers and soldiers' widows were not required. It tended to confirm the testimony of the defendant of his understanding of the practice in that respect, and bore directly upon the essential issue of criminal intent.
In all fairness to the defendant, as a corroborating fact of his claimed understanding of the practice aforesaid, this should have been admitted on the sharp conflict between his testimony and that of the witness J. R. Hall. The government was indulged to go back more than three years prior to the finding of the indictment to inquire of said Hall respecting a verbal arrangement between him and the defendant for entering the land in the Minot district, who detailed a conversation claimed to have been had with the defendant about his entry; that he was conscious of committing perjury when he swore to his application; and that he did it in carrying out his understanding with the defendant, to the effect that in consideration of the sum of $200 he was to convey this land to the defendant on making final proof, which the defendant denied; and, further, that he (Hall) did not make actual settlement and improvement thereon. It would be a corroborative circumstance for the defendant to show that it was the common understanding, acquiesced in by the land office department up to that time, that no such actual settlement and cultivation by the entrymen were required; and most certainly it bore upon the question as to whether or not the defendant in that respect was guilty of subornation of perjury in Hall's case.
There are many assignments of error respecting the action of the court in allowing certain questions asked by the prosecution and the disallowance of questions on the part of the defendant. We will only consider such of these errors as are deemed representative.
Mrs. Arnold was one of the persons charged to have made a false affidavit by the procurement of the defendant. She was introduced as a witness by the government, and was by no means an unwilling witness. To show the defendant's conscious sense of irregularity in his action in this matter, this witness testified respecting a conversation had with the defendant after she was advised that the later ruling of the land office department required that she make an actual settlement and cultivation of her homestead, and after she moved on to it. She testified that, after she received a letter from the land office saying it was unlawful for her to take up land under a contract, she saw the defendant in January and February, 1905, when she had a conversation with reference to the land; "and he told me that the law was changed, that I would have to go and prove up the land. I asked him if it was worth proving up, and he said 'Yes,' it was a better piece of land than he thought it was when he took it up, and also said that when it was proved up it would be worth a thousand dollars. When I came back I often saw and spoke to Mr. Nurnberger; that is when I came back to live on the land. I had no conversation in particular that I remember of with Mr. Nurnberger on the subject of this contract that I made with him.” Whereat, the district attorney asked the following question:
"Well, give us the general conversation you had with him then."
To which the defendant interposed objection that it was incompetent because relating to a matter occurring subsequent to the matters alleged in the indictment counting on this entry, and the intent of the defendant not being an essential element, etc. The objection was overruled. The witness answered: “Why, he spoke about some one getting him in trouble.
I have had no conversation with Nurnberger since I came to Fargo, but have talked with him on different things, but not on this since I came to Fargo here as a witness. He told me to tell the truth."
Her answer was not satisfactory to the prosecution, and thereupon the district attorney asked the following question:
"I want to refresh your recollection. Do you remember Mr. Nurnberger saying to you since you came to Fargo that if it were not for his sons that he would let the trial go, and that he told you, 'I said to my sons to get out of the blamed state and let it go?'”
This was objected to as leading and cross-examination of the government's witness. The objection was overruled. The witness answered:
• Why, he said something but i don't remember: I can't remember just what he said."
"Q. State whether or not that was the substance of it."
Objection was again interposed on the ground that it called for a conclusion of the witness. This objection was overruled. The witness answered:
"Yes. I can't repeat the words he said. It was something like that, but I can't remember the words he said. I think it was to that effect."
It must be confessed that this was most obnoxious to the objection of a leading examination of the prosecution's own witness. It not only suggested the matter desired, but put words in the mouth of the witness who could then only say “it was something like that.” The government, however, got the full force of the words suggested by the prosecutor.
The same offense was repeated in other instances; strikingly so in the case of Hall, the affiant named in the tenth count of the indictment, on which a conviction was had. He had no written contract with the defendant respecting the land, and testified about conversations he had with the defendant in 1902 respecting the entry. He admitted that he was conscious in making the affidavit that he was swearing to what was not right, that he did not intend to comply with the homestead law in making settlement, cultivation, etc., and tirat he did not file in good faith. Thereat the district attorney asked the following question:
“Wasn't it the facts under which you came out there and the purposes for which you came out there?”