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Opinion of the Court.

indictment, such allegation imports a sufficient degree of obscenity to render the production non-mailable and obscene under the statute.

This indictment is sufficient, because it does, in fact, contain a charge that the book was obscene, to the knowledge of the defendant, who knowingly and wilfully, with such knowledge, deposited it in the mail and thus violated the statute. No one, on reading the third and fifth counts of the indictment, could come to any other conclusion in regard to their meaning, and when this is the case an indictment is good enough.

There is no danger of the defendant in such case being deprived of any of his just rights by holding the indictment to be good. If there were any defect at all in such an indictment it should, as was stated in the Rosen case, be regarded after verdict as one of form under section 1025 of the Revised Statutes, providing that the proceedings on an indictment found by a grand jury in any District, Circuit or other court of the United States, shall not be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.”

One further ground for a reversal is made by counsel for plaintiff in error. It appears from the bill of exceptions that the Government inspector who instigated the prosecution in this case had been informed that the statute was being violated, and for the purpose of discovering the fact whether or not the plaintiff in error was engaged in such violation, the inspector wrote several communications of the nature of decoy letters, which are set forth in the record, asking the plaintiff in error to send him through the mail certain books of the character covered by the statute, which the plaintiff in error did, as is alleged by the prosecution and as has been found by the verdict of the jury. This has been held to constitute no valid ground of objection. Rosen's case, supra, 161 U. S. at page 42; Andrews v. United States, 162 U. S. 420.

There is no error in the record, and the judgment of the court below must be


Statement of the Case.



No. 187. Argued January 28, 1897.- Decided February 15, 1897.

Under the Indian depredation act of March 3, 1891, c. 538, 26 Stat. 851, judg

ment may be rendered against the United States alone, when the tribe of Indians to which the depredators belong cannot be identified, and such inability is stated.

The appellee herein filed his petition against the United States and the Comanche and Kiowa Indians in the Court of Claims on the 4th day of September, 1891, in which he claimed to recover damages for the destruction of his property on the 20th day of January, 1868, by the Comanche and Kiowa Indians, in amity with the United States, at Indian Creek, in Cooke County, Texas. The property destroyed consisted of horses, mares and colts, of the alleged value of $1390.

The government filed an answer to such petition, in which it denied each and every allegation therein contained. The case was duly tried before the court, which found as facts that the claimant was at the time of the loss of his property, and ever since has been, a citizen of the United States, and that in the year 1868 he was the owner of property described in his petition, and that it was of the total value of $1390; that it was destroyed or taken from him by Indians belonging to the Indian tribes, at the time in amity with the United States, and the depredation was without just cause or provocation on the part of claimant, and that it did not appear at the time of the depredation that any Indian troubles existed; that no part of the property included in the computation had been returned or paid for. Upon these findings the court decided as conclusions of law that the plaintiff was entitled to recover from the United States the value of the property, $1390; and that his petition as against the Comanche and Kiowas should be dismissed. Judgment was accordingly entered against the United States for the sum named and for

Opinion of the Court.

a dismissal against the Indians. A motion by the United States for a new trial was overruled, and thereafter an appeal was allowed to this court. 29 C. Cl. 97.

The appellant assigns for errors of fact:

(1.) That the court erred in finding that claimant's property was taken or destroyed by Indians belonging to Indian tribes at the time in amity with the United States.

(2.) In finding that the depredation was committed without just cause or provocation on the part of the claimant or his agent.

(3.) In finding that it does not appear that any Indian troubles existed at the time of the depredation.

Errors of law are assigned :

(1.) That the court erred in its conclusion of law that the claimant should recover from the United States the sum of $1390; and

(2.) It erred in entering judgment against the United States.

Mr. Alexander Porter Morse for appellants. Mr. Assistant Attorney General Howry filed a brief for the same.

Mr. John Wharton Clarke for appellee.

MR. JUSTICE PEckham delivered the opinion of the court.

There is here but a single question for this court to review, and that relates to the right of the Court of Claims to render judgment against the United States alone under the Indian depredation 'act where the tribe of Indians to which the depredators belong cannot be identified, and such inability is stated and judgment rendered against the United States only.

The act in question is entitled, “ An act to provide for the adjudication and payment of claims arising from Indian depredations," approved March 3, 1891, c. 538, 26 Stat. 851.

Under that act jurisdiction is conferred upon the Court of Claims to inquire into and finally adjudicate, in the manner provided in the act, first: All claims for the property of citizens of the United States taken or destroyed by Indians

Opinion of the Court.

belonging to any band or tribe or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for.

The second section of the act waives all questions of limitation as to the time and manner of presenting such claims, provided that no claim accruing prior to July 1, 1865, is to be considered by the court unless the claim shall be allowed or has been or is pending, prior to the passage of the act, before Congress or before the other officers named therein.

The third section provides that all claims shall be presented to the court by petition, setting forth the facts upon which such claims are based, “ the persons, classes of persons, tribe or tribes, or band of Indians by whom the alleged illegal acts were committed, as near as may be, the property lost or destroyed, and the value thereof, and any other facts connected with the transactions and material to the proper adjudication of the case involved.”'

The fourth section provides for service of the petition upon the Attorney General of the United States, and makes it his duty to appear and defend the interests of the Government and of the Indians in the suit." It provides for the filing of a proper plea by the Attorney General, and that in case of his neglect to do so the claimant may proceed with the case, but he “shall not have judgment for his claim or for any part thereof unless he shall establish the same by proof satisfactory to the court."

The fifth section provides, among other things, “That the court shall determine in each case the value of the property taken or destroyed at the time and place of the loss or destruction, and, if possible, the tribe of Indians or other persons by whom the wrong was committed, and shall render judgment in favor of the claimant or claimants against the United States, and against the tribes of Indians committing the wrong when such can be identified."

The sixth section provides that the amount of the judgment rendered against any tribe of Indians shall be charged against the tribe by which or by the members of which the court shall find that the depredation was committed, and shall be deducted

Opinion of the Court.


and paid in the following manner : “First, from annuities due said tribe from the United States; second, if no annuities are due or available, then from any other funds due said tribe from the United States, arising from the sale of their lands or otherwise; third, if no such funds are due or available, then from any appropriation for the benefit of said tribe other than appropriations for their current and necessary support, subsistence and education; and fourth, if no such annuity, fund or appropriation is due or available, then the amount of the judgment shall be paid from the Treasury of the United States: Provided, That any amount so paid from the Treasury of the United States shall remain charge against such tribe, and shall be deducted from any annuity, fund or appropriation herein before designated which may hereafter become due from the United States to such tribe."

The eighth section provides “ that immediately after the beginning of each session of Congress the Attorney General of the United States shall transmit to the Congress of the United States a list of all final judgments rendered in pursuance of this act in favor of claimants and against the United States, and not paid as herein before provided, which shall thereupon be appropriated for in the proper appropriation bills.”

The tenth section provides for an appeal by the claimant or the United States or the tribe of Indians, or other party thereto interested in any proceeding brought under the provisions of the act.

The scheme of the act is to provide payment to the citizen for property destroyed under the circumstances stated in the first section, and where the Indians can be identified to make them, through the funds coming to them from the government, pay back to it the amount it pays by reason of the property so destroyed. We think the liability of the government to pay, upon proof of the facts set forth in the first section, was not intended to be dependent upon the ability of the claimant to identify the particular tribe of or the individual Indians who committed the depredations. If the identification could be made they were to repay the

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