(dissenting). The assignments of error appear to have been voluminous, but by a stipulation all have been abandoned except the particular assignments which assail the validity of the indictment, so that the only questions which this court is required to decide are those affecting the sufficiency of the indictment to charge a crime under section 5440, and whether the indictment itself shows affirmatively that the right of the government to prosecute is barred by the statute of limitations. • •
A conspiracy to be criminal within the terms of section 5440, U. S. R. S., must be an agreement between two or more persons to accomplish a definite object, and that object must be one or the other of two things, viz.: (1) To commit an offense against the United States. (2) To defraud the United States in any manner or for any purpose.
This indictment excludes from consideration the crime of conspiracy to commit a distinct offense — e. g., subornation of perjury — because in plain words the object is declared to be to defraud the United States. And the brief filed in behalf of the government states that:
“The indictment charges a conspiracy to defraud the United States oí the possession and title to public lands. This, then, is the object, and is the complete offense.”
This crime cannot be well or sufficiently pleaded in the exact words of the statute. Evans v. United States, 153 U. S. 587, 14 Sup. Ct. 934, 38 L. Ed. 830. A conspiracy to defraud the United States is a statutory crime, and a valid indictment, to charge that crime, must set forth a scheme to defraud the government with sufficient particularity to enable the court to judge whether the agreement, if successfully accomplished by any means or for any purpose, would in fact *885defraud the United States. United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516. An agreement to do, or cause others to do, harmless things, cannot be made criminal, by merely declaring it to be fraudulent; but, in order to sustain an indictment for such a conspiracy, the court must find in the agreement a criminal intent to perpetrate an actual or legal fraud. United States v. Biggs, 211 U. S. 521, 29 Sup. Ct. 181, 53 L. Ed. 305. I do not mean to assert that a fraud must necessarily involve pecuniary loss. Any unwarranted interference with the operations of the government through its constituted agencies, or misappropriation of government property, even by wrongfully holding temporary possession thereof, or the acquisition of a merely colorable right to property belonging to the government, may constitute the kind of fraud which section 5440 comprehends; and I hold that a mala fide entry of public land accomplished by means of simulated compliance with the provisions of the desert land laws prescribing the manner in which inchoate rights may be acquired would be a fraud upon the government, and that an agreement between two or more persons to effect entries of land in that manner would be a criminal conspiracy subject to indictment under that section.
In the consideration to be given to the material issues, the case for the government is not to be deemed as strengthened or aided by the verdict of the jury, because the sufficiency of the indictment was controverted by a demurrer which was overruled and exceptions taken before pleas were entered, and the decision of the court overruling the demurrer has been assigned as error. The indictment is complex and so overburdened with repetitions of phrases that its meaning is obscure, so that, in order to judge of its merits, it must be condensed and clarified. That part which sets forth the means which the accused agreed to employ to accomplish the object of the alleged conspiracy alleges that their scheme was to induce a large number of-persons to make and file declarations in the form prescribed for entering desert land claims, which declarations are characterized by the phrases:
“A certain false, feigned, fraudulent and fictitious ‘declaration’ concerning- and entry of a certain tract of desert land. * !í * The said false, feigned, fraudulent, untrue and fictitious declarations concerning enlries of said deSort lands of the United States. « * * Said false, feigned fraudulent and fictitious ‘declarations’ concerning and entries of said tracts of desert lands.’'
The words “entry” and “entries” in these phrases are confusing, they mar the sentences in which they occur, and do not express, or help ^ to express, any definite idea. Following an allegation of the continued existence and process of execution of the conspiracy, the indictment contains this, clause :
“And which said conspiracy, combination, confederation, and agreement was to be accomplished and carried into effect by causing, inducing, and procuring a large number of persons, to wit, one hundred persons, whose names are to the grand jurors unknown, to make, subscribe, and swear to certain false, feigned, fraudulent, untrue, illegal, and fictitious entries of, and declarations concerning, said desert lands, and by filing, and causing to *886be filed, with the register and receiver of the United States Land Office for the said Los Angeles land district, the said false, feigned, fraudulent, untrue, illegal and fictitious declarations concerning and entries of said desert lands when so made, subscribed and sworn to as aforesaid.”
This section of a complicated compound sentence fairly illustrates the style of the entire pleading. Succinctly stated, the charge of the indictment is: That the defendants with others did unlawfully conspire to defraud the United States of the use and possession of and title to certain desert lands of the United States, by inducing each of a large dumber of persons to willfully and corruptly make, subscribe, and swear to a fraudulent and fictitious “declaration” for entry of a certain tract of arid land subject to entry under the act of Congress of the United States approved March 3, 1877, entitled “An act to provide for the sale of desert lands in certain states and territories” (19 U. S. Stat. 377; 6 F. S. A. 392 [U. S. Comp. Stat. 1901, p. 1548] ), as amended by the act of Congress approved March 3, 1891, entitled “An act to repeal timber culture laws and for other purposes” (26 U. S. Stat. 1096; 6 F. S. A. 395 [U. S. Comp. Stat. 1901, p. 1549] ), such declaration to be made for the purpose of making fraudulent entries of the respective tracts of desert lands, and to be filed with the register and receiver of the United States Land Office for the Eos Angeles land district for the purpose of inducing said officers to receive and act upon them as if the same were true and made in good faith. And that each of such declarants and other persons were to be induced to make, swear to, and file in the land office fraudulent affidavits concerning expenditures made in the irrigation, reclamation, and cultivation of the respective tracts of land described in said false declarations. Each of the several counts of the indictment, upon which the plaintiffs in error were convicted charges an overt act to effect the object of the conspiracy.
According to the indictment, the means for defrauding the United States which the plaintiffs in error and others agreed to adopt may be divided into two classes, viz. :
(1) The procuring of persons to make, swear to, and file declarations in the form required for making entries of public land under the desert land laws, each containing a false statement that the declarant intended to reclaim the tract of laird by conducting water thereon for the purpose of irrigating the same.
(2) To induce the persons making such declarations and others to make, subscribe, and swear to in simulated and pretended compliance with the requirements of the desert land laws of fraudulent affidavits concerning expenditures made in the irrigation, reclamation, and cultivation of the respective tracts of land described in said false declarations.
As the indictment does not allege that the conspirators agreed to do, or procure others to do anything else, the court has no right to surmise that they adopted or assented to the use of additional means. The indictment does not in words, nor by necessary inference, charge that the object of the conspiracy was to obtain for the conspirators themselves any benefits or advantages, nor in any wise suggest that *887any persons were to be beneficiaries. It does not contain a broad charge that entries of any desert lands were to he actually effected; nor does it charge specifically that all of the necessary steps to effect an entry of any tract of land were to be taken or caused to be taken. To complete an entry, whereby any right or color of right could be secured under the desert land laws, other tilings in addition to the making and filing of a declaration are essential, viz.: The fourth section of the act as amended is mandatory in requiring:
“That at tlic time oí filing tlie declaration hereinbefore required the party shall also lile a map of said land which shall exhibit a plan showing the inode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land, and prepare it; to raise ordinary agricultural crops, and shall also show the source ot the water to be used for irrigation and reclama t ion.”
And the first section of the act is equally mandatory in exacting payment of 25 cents per acre for all of the land to be claimed, as a prerequisite to the filing of a “declaration.” The payment, therefore, is the initial step in the order of procedure to establish an inceptive right.
In order to sustain the validity of this indictment, it is necessary to construe it, so as to put into it a positive accusation that the plaintiffs in error conspired to induce persons to secure colorable rights by making fraudulent entries of land under the desert land law. This is the vitaTpoint in the case, for, unless entries were to be effected, the alleged scheme lacked the essential of practicability for any purpose of fraud. Instead of charging in simple phrase a conspiracy to induce persons to make entries, the meaning of the sentences, of this indictment containing the words “entry” and “entries” is in every instance restricted by qualifying words. The making of an entry of public land as a consummated transaction is one thing; the making of a “declaration” concerning an entry, or for the purpose of making an entry, is different, because the qualifying words in the latter phrase restrict the meaning of the sentence in which it occurs in a way to exclude the idea of a consummated transaction. I cannot assent to a reconstruction of the indictment by rejecting qualifying words limiting the meaning of sentences to cure a fatal defect. 1 f the alleged agreement had been completely executed and the alleged conspiracy fully accomplished, the United States could not have been defrauded thereby, because no colorable right to the possession, use of, or title to any public land could have been initiated by the filing in the land office of mere declarations, and the government would have been unhampered in its right to dispose of all the lands comprised in suds declarations and convey unclouded titles thereto. The procuring and filing in the land office of affidavits concerning expenditures for the reclamation of lands to which no rights had accrued by entries could not be effective means of defrauding the government. It is to be especially noted that by the allegations of the indictment the affidavits concerning expenditures were to refer specifically to expenditures in the reclamation of the particular lands to be described in the false declarations, and the plaintiffs in error cannot be convicted *888of the crime of conspiring to defraud the government by undertaking to procure affidavits generally affecting desert land claims, because they have not been accused of having agreed to carry on a general business as affidavit brokers.
This case differs from the cases of Hyde v. Shine, 199 U. S. 62, 25 Sup. Ct. 760, 50 L. Ed. 90, and Mays v. United States, 179 Fed. 610, 103 C. C. A. 168. The opinion in each of those cases shows that the indictment charged a conspiracy to defraud the United States by a dishonest scheme adequate, if not frustrated, to have secured, or at least to have clouded, the title to large tracts of public land.
The defect in this indictment becomes glaring by contrasting it with the indictment which was upheld by the Supreme Court in Dealy v. United States, 152 U. S. 544, 14 Sup. Ct. 680, 38 L. Ed. 545. It appears by the opinion in that case that the indictment specified the means for defrauding the United States to be “false, feigned, illegal, and fictitious entries under the homestead laws of the United States.” That decision is an authority for giving to the word “entry” its popular signification in land office practice comprehending all the steps essential to consummation of a right to a tract of public land. Necessarily, however, the significance of the word must be controlled by its place in, and association with, other words and phrases composing a sentence. In this indictment it appears to have been used to indicate a document which was to be made, subscribed, sworn to, and filed.
I am unable to concur in the decision affirming the validity of the indictment under which the plaintiffs in error were convicted.