Ware v. United States

SANBORN, Circuit Judge.

On November 24, 1905, and on November 28, 1905, Ware, the defendant below, Erank W. Rambert, and Harry Welch were indicted under section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676], for conspiring to defraud the United States of the title, possession, and use of certain tracts of land by means of fraudulent entries under the homestead laws. The first indictment relates to entries under sections 2289, 2290, 2304, Rev. St. [U. S. Comp. St. 1901, pp. 1388, 1389, 1413], the general homestead law, and the second to entries under the Kincaid act (Act April 28, 1904, c. 1801, 33 Stat. 547 [U. S. Comp. St. Supp. 1905, pp. 325, 326]), which authorizes each homesteader to enter 480 additional acres contiguous to his original homestead in a certain specified district. The defendant was tried alone on the two indictments and found guilty on all the counts of the second and on all but one of the nine counts of the first indictment.

Each of the counts of the indictment charged a conspiracy and an overt act thereunder within three years of the filing of the indictment in which it was found. There was evidence of a conspiracy between Ware and Lambert to cause fraudulent entries under the homestead laws and of an overt act, the procurement of one McKib-ben to make a fraudulent affidavit and application for a homestead entry more than three years before the indictments were filed, so that a prosecution for that conspiracy and act was barred by the statute of limitations. There was substantial evidence that within the three years Lambert caused homesteaders to make fraudulent entries, charged Ware upon his account books for expenses and services in causing these entries, in building shacks upon the lands entered in order to enable the homesteaders to prove their right to title, and in maintaining the claims of the homesteaders, pursuant to the conspiracy of 1902, and that Ware knew of some of these acts, examined these account books, and paid Lambert for these acts pursuant to the agreement of 1902. By a request for a peremptory instruction and by other requests for instructions, which were denied, counsel for the defendant presents this question:

Where the conspiracy was formed and an overt act was done in pursuance of it more than three years prior to the indictment, and overt acts were subsequently done in the execution of it within the three years, may one of the conspirators be successfully prosecuted for it? The question is answered in the negative in U. S. v. Owen (D. C.) 32 Red. 534, U. S. v. McCord (D. C.) 72 Red. 159, 165, and in Ex parte Black (D. C.) 147 Red. 832, 841. It is answered in the affirmative in U. S. v. Greene (D. C.) 115 Red. 343, 317, 349, 350, U. S. v. Greene (D. C.) 146 Red. 803, 889, Lorenz v. U. S., 24 App. Cas. Dist. of Columbia, 337, 387, U. S. v. Bradford (C. C.) 148 Red. 413, 416, 419, U. S. v. Brace (D. C.) 119 Red. 874, 876, Commonwealth v. Bartilson, 85 Pa. 482, 488, People v. Mather, 4 Wend. (N. Y.) 259, 21 Am. Dec. 122, American Fire Ins. Co. v. State, 75 Miss. 24, 35, 22 South. 99, 102, and Ochs v. People, 25 Ill. App. 379, 414. After a careful reading and consideration of these and other authorities, our conclusions are that the true answer to this question is that the existence of the conspiracy and the conscious participation of the defendant therein within the three years are indispensable to the maintenance of such a prosecution; but that, if these facts are established by competent evidence, such a prosecution may be sustained. Proof of the formation by the defendant and others, more than three years before the indictment, of such a conspiracy as that charged in the indictment under which an overt act has been done prior to the three years, is insufficient to sustain the charge of a conspiracy within the three years. But in connection with evidence aliunde of the existence of the same conspiracy, and of the defendant’s conscious participation therein within the three years, it is competent evidence for the consideration of the jury in determining the issue presented by the indictment. An overt act committed by one of the alleged conspirators within the three years pursuant to a conspiracy between him and the defendant, formed and followed by an overt act more than three years prior to the filing of the indictment without the defendant’s consent or agreement within the three years to the continued existence and to the execution of the conspiracy, is incompetent to establish its existence and his participation therein within the three years.

The offense under section 5140 is the conspiracy, not the conspiracy and the overt act. “The provision of the statute,” says the Supreme Court, “that there must be an act done to effect the object of the conspiracy, merely affords a locus penitentise, 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.” U. S. v. Britton, 108 U. S. 199, 205, 2 Sup. Ct. 525, 27 L. Ed. 703. So that there is a locus" peuitcntias after the performance of each overt act and a presumption of the innocence of the defendant, and if, .after the performance of the first overt act, a defendant abandons the design of the conspiracy, and the prosecution of the conspiracy and of the first overt act becomes barred by the statute, the overt acts of other conspirators within the three years in the performance of the old conspiracy without the conscious participation of the defendant ought not to charge, and cannot charge him with the offense, because they fail to evidence his intent to violate the law within the three years.

On the other hand, the offense denounced by section 5440 is not the mere formation, but the existence, of the conspiracy and its execution. And if by the agreement, or by the joint assent of the defendant and one or more other persons, within the three years, the unlawful scheme of the conspiracy is to be prosecuted, and an overt act is subsequently done to carry it into execution, the mere fact that the same parties had conspired and had wrought to accomplish the same or a like purpose, more than three years before the filing of the indictment, ought not to constitute, and does not constitute, a defense to the charge of the conspiracy within the three years.

The same rules of law and of evidence govern the trial and the decision of the issue whether or not the defendant jointly with others consented or agreed within the three j^ears to the existence of the conspiracy and the subsequent execution of its scheme which control the trial of the issue whether or not the conspiracy was originally formed, where that is the cracial question. Evidence must be pi-oduced from which a jury may reasonably infer the joint assent of the minds of the defendant and of one or more other persons within the three years to the existence and the prosecution of the unlawful enterprise. Until such evidence is produced, the acts and admissions of one of the alleged conspirators are not admissible against any of the others unless the court in its discretion permits their introduction out of their order. But where evidence has been produced from which the joint assent of the defendant and one or more other persons within the three years to the existence and execution of the conspiracy may reasonably be inferred by the jury, then any subsequent act or declaration of one of the parties in reference to the common object which forms a part of the res gestse, may be given in evidence against one of the others who has consented to the enterprise. And the joint assent of the minds of a defendant and others within the three years to the existence and execution of the conspiracy may be found by the jury like any other ultimate fact as an inference from other facts proved. Drake v. Stewart, 22 C. C. A. 104, 107, 76 Fed. 140, 143.

In view of these rules of law and the facts of this case, was there error in the refusal of the court below to give the instructions requested by counsel relative to this question ? The main issue at the trial involved the character of the agreement between Ware and Lambert, which was made in the summer or fall of 1902, and more than three years before the filing of the indictment. Lambert testified, in effect, that this contract was that he should procure qualified homesteaders to enter public lands within the inclosure of the U. B. I. Land & Cattle Company, a corporation of which Ware was president; that he should erect a building for each of them upon their lands in order to enable them to' prove up and secure title; that he should cause them to prove up and procure title to their respective tracts from the United States, to give ,to Ware the use of these lands for grazing purposes until they obtained title under the homestead laws, and then to convey the lands to him for $150 for each quarter section ; and that Ware agreed to pay this $150 for each quarter, to pay all the expenses of the homesteaders including their expenses of travel and their fees at the laud office and to pay Rambert his expenses and $50 for each homesteader whom he procured to carry out this agreement. Ware admitted that he made an agreement with Rambert, but he testified that he never made any contract to buy or to take the title to any of these lands. He insisted that the limit of the agreement was that he should pay the necessary expenses of the homesteaders in filing and making improvements upon their lands until they secured title in consideration that they should give to him the use of these lands for grazing purposes until they proved up and secured their titles from the government. Whatever the terms of the agreement may have been, there was ample evidence to sustain a finding by the jury that it constituted an unlawful conspiracy to defraud the United States of the possession, use, and title of these lands. There was also persuasive evidence that Rambert procured one McKibben to make an entry under this agreement more than three years before either of the indictments were found, that there was no new or different agreement subsequent to that time, and that in the execution of this agreement he procured within the three years at least 15 persons to enter tracts of land within the inclosure of the U. B. I. Company, constructed shacks upon some of these tracts, took leases of some of them from the homesteaders to Ware for 99 years, paid all the expenses of llie homesteaders, charged these expenses as they were paid, to Ware, in his account books, wherein they were sufficiently set forth to indicate their character, that he showed these hooks to Ware, who looked at the books and at the entries, and that he and Ware balanced up from the information which they obtained from these, hooks, and Ware paid the charges against him thereon to the amount of $R906.73. None of the homesteaders ever spent a day or a night in the shacks upon the land which they entered or cultivated or used a foot of it. The defendant himself testified that during the three years prior to the indictment he received these leases, looked at the account books of Rambert and at the entries therein, and paid the charges thereon, and during all this time he had the exclusive use of the lands upon which these homesteaders filed. Here was substantial evidence of the joint assent of the minds of Ware and Rambert within the three years to the existence and execution of the conspiracy to defraud the United States of the possession, use, and title of these lands, and of the conscious participation of the defendant therein, and hence there was no error in the refusal of the court to instruct the jury to return a verdict for the defendánt.

The second request of his counsel upon this subject was that, unless the jury found that the unlawful agreement between Ware and Rambert charged in the indictment was made and the first overt act under it was done within three years prior to the filing of the indictments, or of one of them, they must find a verdict of not guilty, and this request was rightly refused because, although the unlawful agreement was made and the first overt act under it was done prior to the three years, yet if, within the three years, the minds of the defendant and Ware met, and they agreed or assented to the existence and execution of the unlawful conspiracy within the three years, 'and the defendant consciously participated therein, he was still guilty of the offense charged.

The third request called to our attention was that if the jury found that whatever agreement was made between Ware and Lambert in respect to the matter of procuring filings and entries to be made upon lands of the United States was made prior to the filing of either indictment, and that all the filings and entries given in evidence were made or procured in pursuance of that agreement without a new agreement or conspiracy between the defendant and Lambert, then the jury must return a verdict for the defendant. But this request was misleading, and hence rightly refused because it declared that a new agreement or conspiracy in respect to the procuring of the filings and entries was indispensable to a conviction when a joint assent of the minds of Ware and Lambert within the three years to the existence and execution of the old conspiracy and Ware’s conscious participation therein were sufficient to constitute the offense.

The fourth request was that:

- “The presumption of innocence continues with the defendant throughout the entire trial, until the jury is satisfied beyond a reasonable doubt of his guilt, and unless upon a consideration of all the evidence in the case you are convinced of his guilt beyond a reasonable doubt, and likewise that he committed! the offense charged within the period of three years before the 24th day of November, 1905, it will be your duty to return a verdict of not guilty.”

The court did not give any part of this request in the words of counsel. But it. instructed the jury in its own words, satisfactorily to counsel for the defendant, upon the presumption of innocence, and then, taking the first count of one of the indictments as its text, it instructed them that the defendant was charged with unlawfully conspiring with Lambert and others on the 28th day of November, 1902, to defraud the United States of the title and use of its lands and with inducing and hiring one Bunn on the 28th day of November, 1902, to file a 'fraudulent application to enter a tract of land as a homestead ; that the offense was the conspiracy, the unlawful agreement charged; that the combination or agreement as charged in the indictment must be proved; that it had permitted the introduction of evidence of the McKibben entry and of other entries not named in the indictments, but that this evidence “was received, not for the purpose of being the basis upon which the government would be entitled to a verdict of guilty, but it was received solely for the purpose of throwing light upon the transactions mentioned in the indictment so far as it might in determining, first, whether or not there was a conspiracy such as charged upon the part of any of the parties connected with said entry, and, secondly, to determine the motive and intent of the parties in entering into such conspiracy or agreement. But unless you find the defendant guilty beyond a reasonable doubt upon one or more of these specific arrangements or overt acts, alleged in the indictment, or at least upon one of them, you cannot find him guilty, even if you 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 he 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 the)' 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. Uam-bert contemplated no more than that the defendant should pay said Dambert 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 liis 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, hut did not contemplate any arrangement hy 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 Rambert to agree to procure qualified homesteaders to enter lands under contracts with them that \Vare should have the use of these lands until such time as the entrymen should prove up or dispose of tlieir 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 entry-man 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 yon 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. H 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.