3. SAME-VIOLATION OF LAW-CUSTOM.

On the trial of one accused of unlawfully cutting timber on land of the United States, evidence of a custom in that locality, known to the general land office, of entering on land and cutting the timber therefrom before patent was obtained, is inadmissible, since a custom to violate the law cannot justify itself.

4. SAME-HONEST INTENT.

Where defendant unlawfully cut timber on public land, the fact that he acted in accordance with a general custom in that locality is not evidence of an honest intent on his part

5. SAME.

Where defendant unlawfully cut timber on public land, the fact that before cutting he endeavored to ascertain whether the land was surveyed, and also notified a special agent of the government that he was cutting the timber, and was not warned off for three weeks, is not evidence of an honest intent.

6. SAME-CHARGE.

On the trial of defendant for unlawfully cutting timber on pubile land, the court charged that, in order to convict, the jury must find that there existed in his mind a willful and wrongful purpose to obtain the timber in violation of law; and that if he entered on public land knowing it was such, without having complied with the provisions of law giving him a right to do so, and cut timber therefrom, they would be authorized to find the requisite criminal intent. Held, that such charge fairly stated the law, and was as favorable to defendant as he was entitled to.

7. SAME-EVIDENCE-INTENT.

Where defendant admits that he had cut timber on 300 acres of unsurveyed government land, to which he had no claim or color of title, and there is evidence that he was informed by the register of the land office that he could not acquire title because the lands were not open to entry, and that he promised his workmen that he would stand between them and the government, and that he had fully exhausted all his privileges of purchasing such lands, the intent constituting the offense of unlawfully cutting timber on government land, defined by Rev. St. § 2461, and Act June 3, 1878, is sufficiently shown.

8. SAME-APPLICATION TO PURCHASE-RIGHT TO CUT TIMBER BEFORE PATENTLICENSE TO CUT.

An occupant of a mineral claim, who has applied for a patent before the purchase price is paid and before he receives a certificate, has no right to cut the timber on such claim with intent to export or remove the same, and a license from him to so cut the timber gives no protection to the licensee as against the government.

9. SAME-MINERAL CLAIM-SEPARATION FROM PUBLIC DOMAIN.

The exclusive right to occupy and work a mineral claim, given to the locator by the mining laws during his occupancy, does not segregate such claim from the public domain, so as to exclude such land from the operation of Rev. St. § 2461, 20 Stat. 89, and 27 Stat. 348, making it a misdemeanor for any person to cut timber on the public lands.

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

Willard Teller (Clayton C. Dorsey, on the brief), for plaintiff in

error.

Timothy F. Burke, for the United States.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

ADAMS, District Judge. On November 25, 1899, a criminal information was filed in the district court of the United States for the district of Wyoming against John C. Teller, the plaintiff in error, charging him with having, between January and September of the year 1898, willfully and unlawfully cut and procured to be cut 150,000 feet of timber growing on the public lands of the United States in said district, with intent to export and dispose of the same. In due course a trial was had, the defendant found guilty, and sentenced to pay a fine of $1,000.

The statutes under which this information was lodged-Rev. St. 1878, § 2461; Act June 3, 1878 (20 Stat. 89); and Act Aug. 4, 1892 (27 Stat. 348)-make it a misdemeanor for any person to cut or procure to be cut timber growing on any lands of the United States situate in any of the "public-land States" with intent to export or dispose of the same. The defendant is accused of cutting timber from two certain tracts of public land in Carbon county, Wyo., one located on Cottonwood creek, and supposed to have been land subject to entry and sale under the act of June 3, 1878, commonly known as the "Stone and Timber Act," and the other being a certain mining claim known as the "Montezuma Placer." The record shows that an admission was made by the defendant at the trial "that he cut timber on 300 acres of unsurveyed government land to which he had no claim or color of title." This admission relates to the cutting on the first-mentioned tract, located on Cottonwood creek. The trial court charged the jury that, before they could convict the defendant, they must find that there existed in his mind "a willfull and wrongful purpose to obtain the timber in violation of the law"; and also that, "if the defendant entered upon the lands of the United States, knowing the same to be a part of the public domain of the United States, and without complying with the requirements of the statute, or attempting to do so, cut, or caused to be cut, timber growing thereon, you will be authorized to find that such cutting was willfull and intentional, and if you do so find the defendant would be guilty, and you should say so in your verdict." In other words, the trial court practically instructed the jury that the intentional cutting of timber found growing on lands known by the person cutting the same to be a part of the public domain constituted a misdemeanor denounced by law. The defendant takes issue with this declaration, and contends that the jury should have been told that there must have been an actual evil or criminal intent, or bad purpose, amounting to moral culpability, in order to convict, and that the court erred in excluding evidence tending to show that the defendant, although cutting timber from lands known by him to have been public lands, cut the same with an honest purpose. The particular facts offered to be proved and relied on by defendant to establish such honest purpose with respect to the cutting from the first-mentioned land are as follows: In June, 1898, the defendant entered 160 acres, and four other persons each entered 160 acres of the same character of lands lying in the near vicinity to those upon Cottonwood creek now in question, for which defendant paid to the United States the price required by the stone and timber

act, namely, $2.50 per acre, or a total of $2,400. Defendant's counsel contend that such purchase by him of similar lands and payment therefor at about the same time as is laid in the information is a circumstance which ought to have gone to the jury as evidence that he would not intentionally commit a trespass for the sake of obtaining timber of the same character a short distance away. We entirely fail to appreciate the force of this contention. The act of June 3, 1878, supra, provides in express terms that the timber lands therein contemplated may be sold to citizens "in quantities not exceeding 160 acres to any one person or association of persons." Defendant had already purchased his full limit of 160 acres, if, indeed, he had not indirectly secured the four other quarter sections above referred to; and, conceding that he had paid for that land, it cannot be that such fact would have any tendency to show that he had an honest purpose in trying to appropriate other lands. He had exhausted his right already, and he knew it, and such evidence, in our opinion, would tend to impugn the motive of defendant in trying to secure other forbidden lands, rather than palliate his conduct in so doing.

It is next urged that the court erred in excluding evidence of a custom prevailing in the vicinity where the offense was committed of entering upon land and immediately proceeding to cut timber therefrom before patent was obtained, and while proceedings to secure the same were pending, and that the custom was known to the general land office. This evidence of custom was offered in connection with an avowal by the defendant of his intention at the time he commenced cutting timber on the tract in question to purchase the same afterwards from the government. We entirely agree with the trial court that this evidence was incompetent. A general custom to violate the law cannot, on any principles of morality or law, justify itself. Neither can it justify an individual instance of violation of the law. Neither can knowledge of such violation by an agent of the United States excuse or justify it. If it were otherwise, then the register of the land office at Cheyenne, or any other agent of the government, and certainly the commissioner of the general land office at Washington, could annul any act of congress at pleasure. But it may be said these observations do not meet the argument that such custom, known to defendant, and acted upon by him, is evidence of an honest intent and purpose on his part in doing that which was customary. Every person is supposed and must be held to know the law. Any laxity in enforcing this axiomatic and fundamental rule would lead to endless disorder and crime. Teller, therefore, knew, or must be held to have known, that any such custom as is claimed in his behalf was an unlawful custom, amounting in and of itself to a violation of law, and it must also be held, in the light of the facts disclosed by this record, that any such custom, if lawful and competent in other cases, could not be of any avail to him, because, as just seen, he had already exhausted his full privilege of purchasing timber land under the act of 1878, and could not directly, in the manner prescribed by congress, or in any other manner, lawfully acquire any more. If

he could not do it directly or lawfully, it is impossible for us to conceive how he can sheiter himself under a general custom, and thereby justify himself in the attempt to accomplish the same purpose indirectly and unlawfully.

In the case of U. S. v. Mock, 149 U. S. 273, 13 Sup. Ct. 848, 37 L. Ed. 732, the supreme court considered a case of trespass for cutting and carrying away timber from public lands. The trial court had charged the jury as follows:

**

"It is a matter of history that the government permitted the early pioneers, as they went ahead to make their homes for themselves, to go on the public domain, and take such timber as was necessary for domestic use; and, although there never was any law or license to that effect, it was done with knowledge of every department of the government, legislative, judicial, and executive. While I wish you to understand that I am not aware of any license having ever been given in the last sixty years to any party to go on the public domain and cut timber, no court has ever held, and no court would be justified in holding, that these men were all criminals who went on and put up a little mill for the purpose of aiding their neighbors in procuring lumber for domestic purposes."

The court, speaking by Mr. Justice Brewer, commenting on the foregoing observations of the trial court, says:

* *

"The specific portions [of the charge] to which the attention of the court was called at the time and exceptions taken are that which refers to the history of the attitude of the government towards pioneers and others who took timber from government lands for domestic use, and that which declared that no verdict could be returned in favor of the government except for the value of the lumber manufactured. In these there was obvious error. Nor were the observations of the court in reference to the attitude of the government justifiable. Whatever propriety there might be in such a reference in a case in which it appeared that the defendant had simply cut timber for his own use, or the improvement on his own land, or development of his own mine (and in respect to that matter, as it is not before us, we express no opinion), there certainly was none in suggesting that the attitude of the government upheld or countenanced a party going into the business of cutting and carrying off timber from government land, manufacturing it into lumber, and selling it for profit."

The principles enunciated in that case are, in our opinion, irreconcilable with the claims of defendant's counsel in this case.

The defendant contends that the facts shown by the record that he endeavored, prior to cutting any timber on the land in question, to ascertain whether the land had been surveyed; that while at work cutting the timber he notified one Abbott, a special agent of the government, that he was so doing; that he received no notice to quit for three weeks thereafter, constitute evidence of an honest purpose on his part, and should have been submitted to the jury on that issue. The principles hereinbefore discussed are, we think, entirely applicable to this last contention. The land was unquestionably unsurveyed public land, and, if defendant had prosecuted his alleged honest purpose far enough, he would have ascertained that fact. But whether he knew or could have known that it was unsurveyed public land was immaterial. All that he was required to know was that it was public land, surveyed or unsurveyed, and, if he knew that,-which unquestionably he did, the fact that he endeavored to find out whether it was surveyed or not was quite immaterial; and certainly the toleration of a trespass for three

weeks or for any time, for that matter-by a special agent of the government, whose duty it was not to tolerate it at all, can be of no avail to a trespasser by way of showing that his trespassing was done with an honest purpose.

So far we have treated the several contentions of defendant's counsel as if it was competent for him to disprove an actual bad purpose or evil intent; in other words, as if it was incumbent on the government to show a bad purpose or evil motive in the mind of the defendant in committing the trespass complained of. We have considered the excluded testimony on that theory (and even on that theory we have been unable to find any substantial error in the rulings of the court), but in so doing we have given the defendant the benefit of a position which, in our opinion, is unwarranted by the law. For the purpose of protecting the public domain from the invasion of trespassers, congress denounced as a crime the cutting of timber on public land "with the intent to export and dispose of the same." This is the intent that is made criminal by the law, and the only intent necessary to establish the crime in a given case. This intent is fully admitted in the present case. It is undisputed that the defendant cut the timber in question for the purpose of fulfilling a contract with the receivers of the Union Pacific Railroad Company for the delivery of 250,000 ties at Ft. Steele. It has been held by the supreme court in Stone v. U. S., 167 U. S. 188, 17 Sup. Ct. 778, 42 L. Ed. 127, that it is necessary in prosecutions under the statute now in question to prove a criminal intent, "or at least that [defendant] knew the timber to be the property of the United States." The elements of the offense charged against the defendant are three in number: (1) Cutting timber; (2) from land known to be public land; and (3) with intent to export or dispose of the same. These three elements concurring, the crime, in our opinion, is complete, and the jury would be fully justified in finding-and, indeed, it would be their duty to find-all the criminal intent required by the act.

The trial court charged the jury that, in order to convict, they must find that there existed in the mind of the defendant a "willful and wrongful purpose to obtain the timber in violation of the law." Taken by itself, this portion of the charge would have been misleading; but, taken in connection with other portions of the charge, to the effect that, if the defendant entered upon public land knowing it was such, without having complied with the provisions of the law giving him a right to do so, and cut timber therefrom, the jury would be authorized therefrom to find the requisite criminal intent, it fairly stated the law to the jury, and certainly as favorable to the defendant as he was entitled. The admission of the defendant at the trial that he had cut timber on 300 acres of unsurveyed government land to which he had no claim or color of title; the evidence of E. M. Johnston, register of the land office at Cheyenne, that he had informed the defendant, prior to his cutting the timber, that he could not acquire title to the lands, because they were not open to entry; the testimony tending to show that defendant promised his workmen, when they called his attention to the fact that the