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should believe him guilty of an unlawful conspiracy or agreement in respect to any of these matters which are not specifically alleged in the indictment. He is upon trial for the specific acts charged in the indictment, and those only, and you cannot find a verdict of guilty for some other act not charged in the indictment.” The conspiracy was charged within the three years in every count of the indictments. The court instructed the jury that the conspiracy was the offense ; that it must be proved as charged in the indictment; that they could not find the defendant guilty, although they believed he had entered into an unlawful conspiracy to cause the McKibben entry; but that they must find a conspiracy as charged in the indictments to procure the entries of the lands there specified. The jury could not have failed to understand, in the face of these instructions, that they must find the existence of the conspiracy within the three years, and hence there was no error in the refusal of the fourth request. Where a rule or principle of law is declared by the court in its general charge, it is not error for it to refuse to repeat it in the words of the attorney who requests it. Southern Pac. Co. v. Schoers, 52 C. C. A. 268, 275, 114 Fed. 466, 473, 57 L. R. A. 707; Chicago Great Western Ry. Co. v. Roddy, 65 C. C. A. 470, 475, 131 Fed. 712, 717.

The court charged the jury that the mere advancing of money to a party to enable him to enter his homestead and advancing money to make improvements thereon are not of themselves unlawful acts, but are simply acts and circumstances which may be considered in determining whether or not there was an unlawful agreement by which the entryman was to make the entry, not for his own use and benefit, but for the use and benefit of another. “Neither is it unlawful for a person,” said the court, “having a bona fide homestead entry, to permit another to cultivate and use portions thereof. Such fact, if it be a fact, however, is to be considered with the other evidence in the case in determining the good faith and bona fides of the entryman.” Counsel for the defendant complain that the court refused to instruct the jury that:

"If the arrangement which the defendant entered into with Frank W. Lambert contemplated no more than that the defendant should pay said Lambert a commission and should pay the necessary expenses of entrymen in making their filings and in proving the claims upon which they should enter and in making final proof, and that in consideration of such assistance the defendant was to have been permitted to graze his cattle over such lands and adjacent lands or to use such lands until such time as the entrymen should prove up or dispose of their holdings, but did not contemplate any arrangement by which the defendant or any person other than the entryman should succeed to, or get the benefit of such title as the entryman might obtain from the government either in whole or in part, such an arrangement would not be an unlawful conspiracy and your verdict will be not guilty.”

The evidence was that the lands which were to be entered were within the inclosure of Ware's company, that they were unfit for cultivation, and that Ware's company was using them for grazing purposes. The effect of the requested instruction was that it was lawful for Ware and Lambert to agree to procure qualified homesteaders to enter lands under contracts with them that Ware should have the use of these lands until such time as the entrymen should prove up or dispose of their holdings on condition that Ware and Lambert made no agreement that these entrymen should dispose of the titles which they might acquire from the government after they obtained them. But the purpose of the homestead laws is to induce settlement, cultivation, and the establishment of homes upon the public lands. The law requires the homesteader to reside upon his land at least one year before he may make his proof of title. It requires him to make an affidavit before he enters the land that he applies to enter it “for his exclusive use and benefit and that his entry is made for the purpose of actual settlement and cultivation, not either_directly or indirectly for the use or benefit of any other person." Rev. St. § 2290. It is true that a homesteader may lawfully cut and remove such timber from the public lands he enters as it is necessary for him to remove to enable him to reside upon, improve, and cultivate the land before his final proof. But the cutting of the timber or any other use of the land or of its products by him prior to his final proof must be incident to his actual cultivation, improvement, and living upon the land, in good faith, to procure his homestead for his own benefit. Grubbs v. U. S., 105 Fed. 314, 320, 321, 44 C. C. A. 513, 519, 520; Conway v. U. S., 95 Fed. 615, 619, 37 C. C. A. 200, 204.

The use of the land entered by a homesteader, together with adjacent lands by another person for grazing purposes, until the entryman makes his final proof or disposes of his holdings, without the reservation or application of any part of the land or of its use to cultivation or to residence thereon, is inconsistent with the purpose and spirit and violative of the provisions of the law, and an agreement to procure homesteaders to make entries of public lands in order that third persons may obtain such use from them is an unlawful agreement. It is a contract to induce homesteaders to make applications to enter lands, not for their exclusive use and benefit, but for the use and benefit of another in violation of the oaths they are required to take when they make their applications to enter, and there was no error in the refusal of the court below to instruct the jury that such a contract was not an unlawful conspiracy. If qualified homesteaders could lawfully lease or grant the use of the lands they might enter to others, without restriction or reservation, until they should prove up or dispose of their holdings, third parties might appropriate to themselves by the use of successive homesteaders, who would dispose of their holdings before they made proof of title, large tracts of the public domain for indefinite periods, and might thereby retard or prevent the use or sale of these lands by the United States.

Counsel specify this paragraph of the charge of the court as error:

“Statements of Lambert, Welch, and others in the absence of the defendant on trial, and conversations with some of the witnesses on the part of Lambert, Welch, and others. in the absence of the defendant, have been given in evidence. It is proper that I should say to you that this evidence was admitted as bearing upon the question of the existence of a conspiracy and its nature, if any there was, and its shedding light upon the relation of the persons so speaking to the transaction. These declarations, statements, and communications were and are admissible as bearing upon the question of the existence of the alleged conspiracy and as touching the alleged connection of the persons making them therewith."

They insist that this instruction was erroneous: (1) Because it directed the jury to consider the admissions and declarations of others than the alleged co-conspirators, Lambert and Welch; (2) because it made the declarations and admissions of the alleged co-conspirators evidence of the alleged conspiracy; and (3) because it made the declarations of the alleged co-conspirators evidence against the defendant whether they were made during the pendency of the conspiracy, and in the execution of it, or before or afterward. The third objection is untenable, because counsel did not call the attention of the court to the specific exception to or limitation upon the general rule that the declarations and admissions of co-conspirators are evidence against their fellows after proof of the conspiracy, which they now insist should have been declared, so that the court did not consider or refuse to declare this limitation. All the objections to this portion of the charge are answered by the following considerations: Counsel point out no declarations, statements, or admissions of Lambert or of Welch or of others that were erroneously admitted in evidence, and they call attention to no objection or exception to the admission of any such declaration, statement, or admission. When the portion of the charge under consideration is examined, it is found to be nothing more than a declaration that evidence that had been admitted in the course of the trial for the purposes therein stated was properly received. If any of this evidence was inadmissible, the time to challenge it and to preserve the right to correct in this court the error of its admission was when it was offered, when the specific declarations, admissions, and conversations and their relations to the other evidence and the issues in the case could be properly seen by the court below and could be portrayed upon the record for the consideration of this court. As counsel make no complaint of any ruling admitting any of this evidence, and call our attention to no specific declaration, admission, or conversation that was erroneously received in evidence, and as circumstances might have existed which would have rendered such declarations, admissions, or conversations admissible in evidence, as where they were repeated to and confirmed by the defendant, or where they were admitted without objection or exception by the defendant, or were introduced by the defendant, or were drawn out by proper cross-examination of his witnesses, counsel have failed by a mere exception to this portion of the charge, without any request to exclude the specific evidence challenged, to overcome the prima facie presumption which always exists that the action of the court below was right. The burden is always on him who alleges error in the ruling of a court to establish that error by the record which he presents to the appellate court, and, in the absence of such proof, his objections cannot prevail. Chicago Great Western Ry. Co. v. Price, 38 C. C. A. 239, 250, 97 Fed. 423, 434; Southern Pac. Co. v. Arnett, 61 C. C. A. 131, 133, 126 Fed. 75, 77. In the absence of any showing in the record of the declarations, admissions, and conversations to which the court referred in its charge, of their connection with, and relation to, the other evidence in the case and of the circumstances under which the court received them in evidence, the defendant has not adequately borne this burden. This record fails to show that the evidence referred to was not lawfully admitted for the purposes stated and the exception to the portion of the charge here challenged cannot be sustained.

The judgment below must be affirmed, and it is so ordered.

PHILIPS, District Judge (dissenting). I express no dissatisfaction with the majority opinion, save in respect of the manner in which the trial court dealt with the application of the statute of limitations to this case, and the implied approval thereof by the affirmance of the judgment.

There is no place in this record for any discussion of the question as to whether or not the existence of the original conspiracy between Ware and Lambert might be inferred simply from the fact of overt acts done by them, for the reason that the government, by its witness Lambert, made direct proof of the agreement between him and Ware entered into in the district of Nebraska in the month of October, 1902. Its character and purpose, as well as the manner to be pursued in its execution, were thus developed by the government. It put in evidence as an overt act done in furtherance of said agreement the transactions respecting the McKibben entries, which were more than three years prior to the finding of the indictment. It is conceded that the commission of the first overt act in furtherance of the conspiracy agreement put into operation the three years' statute of limitations.

In United States v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698, the court said:

"This offense does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the statute 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. It follows as a rule of criminal pleading that in an indictment for conspiracy, under section 5440, the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy.

In Dealy v. United States, 152 U. S. 546, 14 Sup. Ct. 683 (38 L. Ed. 515), the court again said: “The gist of the offense is the conspiracy." This is emphasized by the ruling in Callan v. Wilson, 127 U. S. 540, 555, 8 Sup. Ct. 1301, 32 L. Ed. 223, where it is asserted that the confederation or combination of two or more persons to do an unlawful act is in and of itself, at common law, an indictable offense, because such combination against the law is deemed more dangerous to the public peace and security than if done by a single person. Hence it is that the court, in Clune v. United States, 159 U. S. 590, 595, 16 Sup. Ct. 125, 40 L. Ed. 269, held that, although the act intended to be effected was forbidden by a special statute, which prescribed a minor punishment, as a fine without imprisonment, yet the charge of conspiracy under section 5410, if sustained, is sufficient to subject the party to the severer punishment, as a felony.

The conspiracy shown by the government to have been entered into between Ware and Lambert in October, 1902, made effective by an overt act, could no more form the basis of this prosecution than if Ware had been indicted therefor within three years thereafter and convicted or acquitted thereof. The statute of limitations was as effectual a bar as a plea of autrefois convict or autrefois acquit.

No matter how many overt acts may have been committed by Lambert pursuant to that conspiracy, there was but one act for which the parties could be punished, and that was the consummated unlawful conspiracy. The action of the trial court recognized this as the law, for, while the plaintiff in error was found guilty on several counts, there was but one sentence imposed, as the conspiracy, and not the overt act, was the offense made punishable by the statute. Indeed, there was no occasion for more than one count in this indictment. After alleging the existence of the conspiracy, it was perfectly competent to proceed to set out in the same count all of the overt acts claimed to have been committed in furtherance thereof.

The irrefutable logic of the law, it must therefore be conceded, is that, no matter how many overt acts may be committed, if they are referable to one and the same conspiracy, they constitute not several conspiracies or evidence of as many conspiracies. The conspiracy on which the minds of the parties met was one and indivisible, and whenever it is consummated by the commission of one overt act, a statutory limitation, eo instanti, attaches and creates a bar to the prosecution. The corollary of this postulate indisputably must be that, after the original conspiracy has been followed by any overt act, more than three years prior to the indictment, to support the prosecution under the statute there must be a wrongful agreement found and an overt act done in furtherance thereof within the three years.

Names are of little consequence here. Whether we call it a new or renewed conspiracy, the essential requirement of the law, to give the statute of limitations the protective efficacy of its spirit, is that there must be a conspiracy between the parties charged formed within the statutory period of limitation.

To constitute any agreement as the basis of a civil action or criminal prosecution, there must be the aggregatio mentium—the coming together of the minds of the parties in the formulation of its terms. It must be established by competent, substantial evidence, and not by conjecture, and in a criminal case like this it must be established to the satisfaction of the jury beyond a reasonable doubt.

This brings us face to face with the crucial question in this case: The indictment charges a conspiracy formed within three years after the alleged conspiracy of October, 1902, was barred by the statute of limitations, and it sets out the overt acts done in pursuance of the conspiracy. There is no allusion in the indictment whatever to the antecedent conspiracy agreement of October, 1902, and the first overt act done thereunder; nor is there any allegation that that agreement was continued to within the three-year period, by any wrongful agreement or any co-operation or participation of the parties in the overt

And yet, to support the indictment, the government made proof of the antecedent agreement of 1902 to make out a case. And what is most remarkable in the trial of the case the government made proof of the McKibben entries in furtherance of the original conspiracy, which confessedly occurred more than three years prior to the in

84 C.C.A.--33

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