(dissenting). Plaintiff in error was convicted and sentenced to imprisonment on a charge of perjury, based on alleged false statements he made in his affidavit of final proof on a homestead entry. The real objection made here is that there was no proof to sustain the charge laid against him in the indictment; that which was offered by the prosecution, over objection and exception, having no tendency to support the charge. That charge, as has been stated, is that Dunlap, on June 21,1917, filed in the United States Land Office at Fort Sumner, New Mexico, an application to make homestead entry under the Act of February 19, 1909, on the S. E. (4. of Sec. 9 and the S. W. % of Sec. 10, Township 3, Range 23, that thereafter he caused to be published notice of his intention to make final proof before the Register and. Receiver on December 23, 1922, that he appeared before the Receiver on the day stated to make his final proof and on that day stated under oath in said affidavit the different periods *872during each of the five years, beginning with 1917, that he had resided upon the said land, and that his said statements in that respect were false as he then and there well knew. The charge thus made against him is plain and simple; but the ease was put in some uncertainty and really upset when it came to the notice of final proof and the procedure taken in relation thereto. Before coming to state that situation I will refer to the statutes covering the subject-matter involved.
The Act of February 19, 1909 (35 Stat. 639, U. S. Comp. St. § 4563 et seq.), provides for enlarged homesteads that may be acquired by qualified entryman within certain States, including New Mexico, of 320 acres or less of non-mineral and -non-irrigable lands which do not contain merchantable timber. The entryman must make affidavit as required by section 2290 of the Revised Statutes (Comp. St. § 4531), and in addition thereto shall make affidavit that the land sought to be entered is of the character just described. By section 3 of the Act (Comp. St. § 4565) he is permitted to make additional entry of the kind of lands described, if his first entry shall be less than 320 acres, but the two entries together shall not exceed 320 acres. At the time he makes final proof he shall prove by himself and two credible witnesses that at least one-sixteenth of the area embraced in his entry was continuously cultivated for agriculture and crops other than native grasses, beginning with the second year of the entry, and that one-eighth of the area was so cultivated beginning with the third year of the entry. The Act under which the indictment charged the entry to have been made, the terms' of which have just been noted, is known as the Enlarged Homestead Act. On December 29, 1916, Congress passed an Act known as the Stock Raising Homestead Act (39 Stat. 862 [Comp. St. §§ 4587a-4587k]), under which a qualified entryman may enter not to exceed 640 acres of unappropriated and undeserved public lands. Section 2 of that Act (Comp. St. § 4587b) restricts the lands that may be entered under it to those that, in the opinion of the Secretary of the Interior, are chiefly valuable for grazing and raising forage crops, do not contain merchantable timber, are not susceptible of irrigation from any known source of water supply, and are of such character that 640 acres are reasonably required for the support of a family. Title may be acquired in compliance with the terms of the homestead laws. If the original entry does not embrace 640 acres, the entryman may make an additional entry of the same character of lands which, together with the former entry, shall not exceed 640 acres. In that cáse residence shall be required only on the first entry, but improvements tending to increase the value of the land for stock-raising purposes shall be made on both entries, of a value of not less than $1.25 per acre, and at least one-half of such improvements shall be placed upon the land within three years after the date of entry. The additional entry may be made under this Act either before or after final proof has been submitted upon the first entry. There is a marked and substantial difference between the character of the land and the amount thereof in acreage that may be entered under these Acts.
On October 2.9, 1922, Dunlap submitted to the register a written notice of his intention to make final proof on December 23, 1922, on his two entries, wherein he represented that his first or original entry was made on January 3, 1918 (not June 21, 1917), and his second or additional entry as made on June 21, 1919, and that the two entries, as shown by legal subdivisions embodied in the notice, set out in the majority opinion, contain 640 acres. The register on that same day prepared and signed a notice for publication, stating that final proof on the two entries would be made at the U. S. Land Office at Fort Sumner on December 23, 1922, and he therein stated that the first or original entry was made January 3,1918, and the second or additional entry on June 21, -1919, and that the two entries embraced 640 acres of land as shown by the legal subdivisions therein named. The record contains proof that this notice was published in the Sumner Review, a newspaper issued at Fort Sumner, and also posted in a conspicuous place in the Land Office there for a period of thirty days. Both of these published notices mentioned the two entries, one as made on January 3, 1918, and the other on June 21, 1919. Dunlap’s affidavit of final proof, which includes his alleged false statements, is entitled:
“Form approved by the Secretary of the Interior January 7, 1922.
“Stock-Raising Homestead Final Proof.
“Testimony of Claimant.
“Department of the Interior.”
In this affidavit question 3 and the answer thereto, set out in the majority opinion, read thus:
“Q. 3. Are you the same person who made original homestead entry No. 016879 on January 3, 1918, and additional homestead entry No. 017610 on June 21,'1919, at the Fort Sumner U. S. Land Office, for SW^ Sec. 10 SEi/i See. 9, SW^SW^ See. 3, *873NE% See. 9, W%NW%, NE%NW% Section 10, Township 3 S., Range 23 E., N. M. P. Meridian? íf not, give relationship to entryman. A. Yes sir.”
The record contains Dunlap’s application, dated June 21, 1917, to enter the 320 acres described in the indictment, under the Act of February 19, 1909. He described it as being the kind of land defined in that Act, and the register certified that it was of the class which the applicant was entitled to enter under that Act. I think it appears with equal clearness that Dunlap’s notice of intention to make final proof, the publication of notice for final proof, and Dunlap’s affidavit on final proof did not, nor did any of them, include or intend -to include the taking of final proof on the entry plead in the indictment. Whether or not Dunlap made or did not make an original entry on January 3,1918, under the Act of December 29, 1916, for a stock-raising homestead, is beside the point. The notices were given and Dunlap’s affidavit was taken on the assumption that he made such an entry, and the final proof that was to be taken, and was taken on December 23,1922, was in relation to that entry and his additional entry under the same Act made on June 21, 1919. Prima facie he did make an entry on January 3,1918, under the Act of December 29, 1916; because it cannot be believed that the register .would have accepted his notice of intention to make proof, published the same and accepted from Dunlap his affidavit unless the two entries therein named, and as of the dates named, had been made by him. The two entries together included by description the maximum amount of land that could be entered under the Stock Raising Homestead Act, and more than could be entered under the Act of February 19,1909. Furthermore, one who makes an entry under the Act of February 19, 1909, cannot make an additional entry of 320 acres under the Act of December 29, 1916. The character of the land that may be entered under the prior Act is different from that which can be entered under the later Act, and the later Act requires that the two entries that can be made under it must each cover lands of the kind and character which it describes.
I am, therefore^ convinced that the court erred in admitting, over objection, all of the documents and files made up at the final proof, because none of them tended to establish the charge of the indictment, nor is there any other proof that sustains it. The date of the original entry as having been made on January 3, 1918, is repeated too many times in the several papers relating to the final proof to be attributed to mere oversight or clerical mistake. In addition to that, question 3 (quoted above) propounded to Dunlap in his final proof refers to the original homestead entry as made on January 3,1918, and Dunlap in his answer affirmed that to be -the correct date. These facts are consistent with and only consistent with a conclusion that Dunlap abandoned the entry of June 21, 1917, under the Act of February 19, 1909, and was permitted to make and did make an original entry of the same land on January 3,1918, under the Act of December 29, 1916. It ought to take no argument to refute a contention, if made, that one charged with false swearing as to a specific entry can.be convicted of perjury concerning an entirely different entry. I think the prosecution wholly failed and that the judgment should be reversed.