of the terms of the law, although no contract is made regarding the disposition of the title which may be obtained.

6. CRIMINAL LAW-APPEAL AND ERROR-EXCEPTION FAILS UNLESS RECORD SHOWS RULING CHALLENGED ERRoneous.

Where evidence is admitted in the course of the trial for certain purposes, an exception to a paragraph in the charge of the court, which declares that this evidence was properly admitted for these purposes, in the absence of any request to the court to exclude any specific evidence or to limit its effect, and in the absence of any objection or exception to its admission, and in the absence of any specification of the particular evidence challenged, is unavailing, because in such a case the record fails to prove the error, and the presumption that the action of the court below was right must prevail.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2619.]

Philips, District Judge, dissenting.

(Syllabus by the Court.)

In Error to the District Court of the United States for the District of Nebraska.

T. J. Mahoney and Henry Frawley, for plaintiff in error.

Charles A. Goss and Sylvester R. Rush, for defendant in error. Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN, Circuit Judge. On November 24, 1905, and on November 28, 1905, Ware, the defendant below, Frank W. Lambert, and Harry Welch were indicted under section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676], for conspiring to defraud the United States of the title, possession, and use of certain tracts of land by means of fraudulent entries under the homestead laws. The first indictment relates to entries under sections 2289, 2290, 2304, Rev. St. [U. S. Comp. St. 1901, pp. 1388, 1389, 1413], the general homestead law, and the second to entries under the Kincaid act (Act April 28, 1904, c. 1801, 33 Stat. 547 [U. S. Comp. St. Supp. 1905, pp. 325, 326]), which authorizes each homesteader to enter 480 additional acres contiguous to his original homestead in a certain specified district. The defendant was tried alone on the two indictments and found guilty on all the counts of the second and on all but one of the nine counts of the first indictment.

Each of the counts of the indictment charged a conspiracy and an overt act thereunder within three years of the filing of the indictment in which it was found. There was evidence of a conspiracy between Ware and Lambert to cause fraudulent entries under the homestead laws and of an overt act, the procurement of one McKibben to make a fraudulent affidavit and application for a homestead entry more than three years before the indictments were filed, so that a prosecution for that conspiracy and act was barred by the statute of limitations. There was substantial evidence that within the three years Lambert caused homesteaders to make fraudulent entries, charged Ware upon his account books for expenses and services in causing these entries, in building shacks upon the lands entered in order to enable the homesteaders to prove their right to title, and in

maintaining the claims of the homesteaders, pursuant to the conspiracy of 1902, and that Ware knew of some of these acts, examined these account books, and paid Lambert for these acts pursuant to the agreement of 1902. By a request for a peremptory instruction and by other requests for instructions, which were denied, counsel for the defendant presents this question:

Where the conspiracy was formed and an overt act was done in pursuance of it more than three years prior to the indictment, and overt acts were subsequently done in the execution of it within the three years, may one of the conspirators be successfully prosecuted for it? The question is answered in the negative in U. S. v. Owen (D. C.) 32 Fed. 534, U. S. v. McCord (D. C.) 72 Fed. 159, 165, and in Ex parte Black (D. C.) 147 Fed. 832, 841. It is answered in the affirmative in U. S. v. Greene (D. C.) 115 Fed. 343, 347, 349, 350, U. S. v. Greene (D. C.) 146 Fed. 803, 889, Lorenz v. U. S., 24 App. Cas. Dist. of Columbia, 337, 387, U. S. v. Bradford (C. C.) 148 Fed. 413, 416, 419, U. S. v. Brace (D. C.) 149 Fed. 874, 876, Commonwealth v. Bartilson, 85 Pa. 482, 488, People v. Mather, 4 Wend. (N. Y.) 259, 21 Am. Dec. 122, American Fire Ins. Co. v. State, 75 Miss. 24, 35, 22 South. 99, 102, and Ochs v. People, 25 Ill. App. 379, 414. After a careful reading and consideration of these and other authorities, our conclusions are that the true answer to this question is that the existence of the conspiracy and the conscious participation of the defendant therein within the three years are indispensable to the maintenance of such a prosecution; but that, if these facts are established by competent evidence, such a prosecution may be sustained. Proof of the formation by the defendant and others, more than three years before the indictment, of such a conspiracy as that charged in the indictment under which an overt act has been done prior to the three years, is insufficient to sustain the charge of a conspiracy within the three years. But in connection with evidence aliunde of the existence of the same conspiracy, and of the defendant's conscious participation therein within the three years, it is competent evidence for the consideration of the jury in determining the issue presented by the indictment. An overt act committed by one of the alleged conspirators within the three years pursuant to a conspiracy between him and the defendant, formed and followed by an overt act more than three years prior to the filing of the indictment without the defendant's consent or agreement within the three years to the continued existence and to the execution of the conspiracy, is incompetent to establish its existence and his participation therein within the three years.

The offense under section 5440 is the conspiracy, not the conspiracy and the overt act. "The provision of the statute," says the Supreme Court, "that there must be an act done to effect the object of the conspiracy, merely affords a locus penitentiæ, 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." U. S. v. Britton, 108 U. S. 199, 205, 2 Sup. Ct. 525, 27 L. Ed. 703. So that there is a locus penitentiæ after the performance of each overt act and a presumption of the innocence of the defendant, and if, after the performance of the first overt act, a defendant abandons the design of the conspiracy,

and the prosecution of the conspiracy and of the first overt act becomes barred by the statute, the overt acts of other conspirators within the three years in the performance of the old conspiracy without the conscious participation of the defendant ought not to charge, and cannot charge him with the offense, because they fail to evidence his intent to violate the law within the three years.

On the other hand, the offense denounced by section 5440 is not the mere formation, but the existence, of the conspiracy and its execution. And if by the agreement, or by the joint assent of the defendant and one or more other persons, within the three years, the unlawful scheme of the conspiracy is to be prosecuted, and an overt act is subsequently done to carry it into execution, the mere fact that the same parties had conspired and had wrought to accomplish the same or a like purpose, more than three years before the filing of the indictment, ought not to constitute, and does not constitute, a defense to the charge of the conspiracy within the three years.

The same rules of law and of evidence govern the trial and the decision of the issue whether or not the defendant jointly with others consented or agreed within the three years to the existence of the conspiracy and the subsequent execution of its scheme which control the trial of the issue whether or not the conspiracy was originally formed, where that is the crucial question. Evidence must be produced from which a jury may reasonably infer the joint assent of the minds of the defendant and of one or more other persons within the three years to the existence and the prosecution of the unlawful enterprise. Until such evidence is produced, the acts and admissions of one of the alleged conspirators are not admissible against any of the others unless the court in its discretion permits their introduction out of their order. But where evidence has been produced from which the joint assent of the defendant and one or more other persons within the three years to the existence and execution of the conspiracy may reasonably be inferred by the jury, then any subsequent act or declaration of one of the parties in reference to the common object which forms a part of the res gestæ, may be given in evidence against one of the others who has consented to the enterprise. And the joint assent of the minds of a defendant and others within the three years to the existence and execution of the conspiracy may be found by the jury like any other ultimate fact as an inference from other facts proved. Drake v. Stewart, 22 C. C. A. 104, 107, 76 Fed. 140, 143.

In view of these rules of law and the facts of this case, was there error in the refusal of the court below to give the instructions requested by counsel relative to this question? The main issue at the trial involved the character of the agreement between Ware and Lambert, which was made in the summer or fall of 1902, and more than three years before the filing of the indictment. Lambert testified, in effect, that this contract was that he should procure qualified homesteaders to enter public lands within the inclosure of the U. B. I. Land & Cattle Company, a corporation of which Ware was president; that he should erect a building for each of them upon their lands in order to enable them to prove up and secure title; that he should cause them to prove up and procure title to their respective tracts

from the United States, to give to Ware the use of these lands for grazing purposes until they obtained title under the homestead laws, and then to convey the lands to him for $150 for each quarter section; and that Ware agreed to pay this $150 for each quarter, to pay all the expenses of the homesteaders including their expenses of travel and their fees at the land office and to pay Lambert his expenses and $50 for each homesteader whom he procured to carry out this agreement. Ware admitted that he made an agreement with Lambert, but he testified that he never made any contract to buy or to take the title to any of these lands. He insisted that the limit of the agreement was that he should pay the necessary expenses of the homesteaders in filing and making improvements upon their lands until they secured title in consideration that they should give to him the use of these lands for grazing purposes until they proved up and secured their titles from the government. Whatever the terms of the agreement may have been, there was ample evidence to sustain a finding by the jury that it constituted an unlawful conspiracy to defraud the United States of the possession, use, and title of these lands. There was also persuasive evidence that Lambert procured one McKibben to make an entry under this agreement more than three years before either of the indictments were found, that there was no new or different agreement subsequent to that time, and that in the execution of this agreement he procured within the three years at least 15 persons to enter tracts of land within the inclosure of the U. B. I. Company, constructed shacks upon some of these tracts, took leases of some of them from the homesteaders to Ware for 99 years, paid all the expenses of the homesteaders, charged these expenses as they were paid, to Ware, in his account books, wherein they were sufficiently set forth to indicate their character, that he showed these books to Ware, who looked at the books and at the entries, and that he and Ware balanced up from the information which they obtained from these books, and Ware paid the charges against him thereon to the amount of $1,906.73. None of the homesteaders ever spent a day or a night in the shacks upon the land which they entered or cultivated or used a foot of it. The defendant himself testified that during the three years prior to the indictment he received these leases, looked at the account books of Lambert and at the entries therein, and paid the charges thereon, and during all this time he had the exclusive use of the lands upon which these homesteaders filed. Here was substantial evidence of the joint assent of the minds of Ware and Lambert within the three years to the existence and execution of the conspiracy to defraud the United States of the possession, use, and title of these lands, and of the conscious participation of the defendant therein, and hence there was no error in the refusal of the court to instruct the jury to return a verdict for the defendant.

The second request of his counsel upon this subject was that, unless the jury found that the unlawful agreement between Ware and Lambert charged in the indictment was made and the first overt act under it was done within three years prior to the filing of the indictments, or of one of them, they must find a verdict of not guilty, and this request was rightly refused because, although the unlawful agree

ment was made and the first overt act under it was done prior to the three years, yet if, within the three years, the minds of the defendant and Ware met, and they agreed or assented to the existence and execution of the unlawful conspiracy within the three years, and the defendant consciously participated therein, he was still guilty of the offense charged.

The third request called to our attention was that if the jury found that whatever agreement was made between Ware and Lambert in respect to the matter of procuring filings and entries to be made upon lands of the United States was made prior to the filing of either indictment, and that all the filings and entries given in evidence were made or procured in pursuance of that agreement without a new agreement or conspiracy between the defendant and Lambert, then the jury must return a verdict for the defendant. But this request was misleading, and hence rightly refused because it declared that a new agreement or conspiracy in respect to the procuring of the filings and entries was indispensable to a conviction when a joint assent of the minds of Ware and Lambert within the three years to the existence and execution of the old conspiracy and Ware's conscious participation therein were sufficient to constitute the offense.

The fourth request was that:

"The presumption of innocence continues with the defendant throughout the entire trial, until the jury is satisfied beyond a reasonable doubt of his guilt, and unless upon a consideration of all the evidence in the case you are convinced of his guilt beyond a reasonable doubt, and likewise that he committed the offense charged within the period of three years before the 24th day of November, 1905, it will be your duty to return a verdict of not guilty."

The court did not give any part of this request in the words of counsel. But it instructed the jury in its own words, satisfactorily to counsel for the defendant, upon the presumption of innocence, and then, taking the first count of one of the indictments as its text, it instructed them that the defendant was charged with unlawfully conspiring with Lambert and others on the 28th day of November, 1902, to defraud the United States of the title and use of its lands and with inducing and hiring one Bunn on the 28th day of November, 1902, to file a fraudulent application to enter a tract of land as a homestead; that the offense was the conspiracy, the unlawful agreement charged; that the combination or agreement as charged in the indictment must be proved; that it had permitted the introduction of evidence of the McKibben entry and of other entries not named in the indictments, but that this evidence "was received, not for the purpose of being the basis upon which the government would be entitled to a verdict of guilty, but it was received solely for the purpose of throwing light upon the transactions mentioned in the indictment so far as it might in determining, first, whether or not there was a conspiracy such as charged upon the part of any of the parties connected with said entry, and, secondly, to determine the motive and intent of the parties in entering into such conspiracy or agreement. But unless you find the defendant guilty beyond a reasonable doubt upon one or more of these specific arrangements or overt acts, alleged in the indictment, or at least upon one of them, you cannot find him guilty, even if you