RICHARDS v. UNITED STATES, 175 F. 911

HOOK, Circuit Judge. The plaintiffs in error were jointly indicted under

section 5440 Rev. St., for conspiracy with various persons, some named in the indictment and others unknown to the grand jurors, to defraud the United States of the title, possession, and use of public lands in Cherry and Sheridan counties, Neb., by means of “false, feigned, fraudulent, untrue, illegal and fictitious entries” under homestead laws and to commit an offense against the laws of the United States by suborning entrymen to commit perjury in making oath to homestead affidavits. They were tried and found guilty as charged in 35 out of 38 counts in the indictment.

They were sentenced, Richards and Comstock each to pay a fine of $1,500 and to be imprisoned in a county jail for one year, and Jameson and Triplett each to pay a fine of $500 and to be likewise imprisoned for eight months. The punishment was within what might have been imposed upon conviction under any one of the counts. The assignments of error cover more than 400 pages of the printed record and those relied on more than 200 pages of the printed brief. We cannot do more than notice those which seem to merit attention. The criticisms of the indictment are sufficiently answered by Dealy v. United States, 152 U.

S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Cochran v. United States, 157 U. S. 287, 290, 15 Sup. Ct. 628, 39 L. Ed. 704; Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; Olson v. United States, 133 Fed. 849, 67 C. C. A. 21; Stearns v. United States, 152 Fed. 900, 82 C. C. A. 48; Ware v. United States, 154 Fed. 577, 84 C. C. A. 503; Thomas v. United States, 156 Fed. 897, 84 C. C. A. 477, 17 L. R. A. (N. S.) 720; Gantt v. United States, 108 Fed. 61, 47 C. C. A. 210. The complaint that the four defendants named were each denied separate trials is disposed of by United States v. Ball, 163 U.

S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300; Krause v. United States, 147 Fed. 442, 78 C. C. A. 642. It is also urged that the court should! have sustained defendants’ challenge for cause of proposed juror Seymour, because he said he had formed from reading newspapers an impression or opinion concerning- such cases in general which it would take evidence to remove. Without considering the merits of this challenge, it may he said that Seymour was not a member of the jury which tried the case, and the record does not disclose when, how, or by whom he was excused.

For aught that appears, the court may have afterwards excused him of its own motion, or it may have been done at the instance of the government. Even if it could be assumed that, after their challenge for cause was overruled, he was challenged peremptorily by defendants, the record does not show they exhausted their challenges of that character. So in any aspect the question of Seymour’s competency as a juror is an academic one.

Upftn the examination of jurors as to their qualifications, counsel for defendants asked a number of them this question: “Would you consider it a fraudulent practice on the United States for a man to loan to a would-be homesteader the money to pay his fees, commissions, and expenses of his entry?” The trial court sustained an objection thereto, and its action is assigned as error. In Connors v. United States, 158 U. S. 408, 15 Sup. Ct. 951, 39 L.

Ed. 1033, the court said: “It is quite true, as suggested by the accused, that he was entitled to be tried by an impartial jury; that is, by jurors who had no bias 'or prejudice that would prevent them from returning a verdict according to the law and the evidence. It is equally true that a suitable inquiry is permissible in order to ascertain cvlietlier the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, he left to its sound discretion.

This is a rule in civil cases, and the same rule must he applied in criminal cases.” The record before us shows that a wide latitude of inquiry was permitted, and no question was excluded that called for a statement of fact, or that properly tended to disclose the mental attitude of a juror towards the parties or the case to be tried. The question denied involved a rule of law concerning which, if not affecting their own transactions or their own relations to the government, men in general are not supposed to be accurately informed.

It related to that which was within the province of the court in giving instructions. That this is so was recognized by defendants, for after the jury was impaneled and the evidence was in they asked the court to instruct regarding their right to advance money to entrymen, and the court did so. As said by the Supreme Court, the inquiry of proposed jurors is conducted under the supervision of the court, and a great deal must, of necessity, he left to its sound discretion.

If questions like that set forth, and questions of mixed law and fact relating to the many and Varied phases of a case, must be admitted—if their exclusion constitutes an abuse of discretion, and therefore error compelling a reversal—it is obvious that the examination of proposed jurors may be so conducted as greatly to obstruct and impede the administration of justice, without safeguarding any substantial right of an accused. Complaint is made of the denial of defendants’ request for a directed verdict.

The evidence is so voluminous that it is impossible within appropriate space to do much more than refer to general features of the case made by the proofs. The great mass of corroborative detail and inferences the jury might properly draw must be omitted. It should he observed at the outset that the evidence in the case was alone that of the government. Defendants introduced none, nor sought, except by cross-examination, to explain many facts and circumstances that tended strongly to indicate guilt.

The evidence showed that the Nebraska Land & Feeding Company, a Wyoming corporation, with an office at Ellsworth, Neb., ran its herds of cattle on what was generally known as the “Spade Range” in 1905 and previous years. This range, which was in Western Nebraska, was inclosed by the company with its own fences in connection with the fences of its neighbors, arid included, unlawfully, many thousand acres of the public domain. There were also ranches known as the “Overton” and “C-Bar” which as some testimony tended to show were a part of the “Spade Rang*, and used by the Nebraska Company.

Defendants Richards, Comstock, and Jameson acted on behalf of the company in various matters about to be related. They were about the office of the company, in Ellsworth, apparently with authority, and letters were written by them about the matters under investigation upon its letter heads, which recited that Richards was president, Coin-stock vice president, and Jameson secretary and treasurer. One letter Jameson signed as secretary. On April 28, 1901,

an act of Congress, commonly called the “Kinkaid Act” (33 Stat. 547, c. 1801 [U. S. Comp. St. Supp. 1909, p. 513]), was passed authorizing homestead entries in Western Nebraska in tracts of 610 acres. The act was to take effect June 28, 1901. The land in that country was generally of a character suitable for grazing, rather than for agricultural cultivation, and the prior limitation of homestead entries to 160 acres did not make it inviting. The object of the act was to encourage actual bona fide settlement by increasing the quantity of land that might be taken for a homestead.

If this object had been realized, the result would have been the peopling of the country and the breaking- up of the inclosures of the large cattle ranges. The defendants, including those jointly indicted, but tried! separately, induced larg-e numbers of men, mostly veterans of the Civil War, to make homestead entries “on the range under the Kinkaid act.

The entrymen came from Nebraska, Iowa, and Illinois, many of them from soldiers’ homes in those states. 'Veterans were preferred, and were the greater in number, because their service in the army shortened the required period of residence on the lands entered as homesteads. The entrymen were attracted by promises of payment of all expenses, and by representations that their improvements would be made for them, and that they need not live on the lands selected, but, instead, a visit once in every six months was all that was necessary. There was also held out to them the promise of sale when final proofs were made.

They came in small parties, sometimes a dozen or so, almost invariably in personal charge of some man in the service of defendants. Most of them were first taken to Gordon or Ellsworth, Neb., and! thence driven to the range, where the drivers of the vehicles, who had been furnished by some one acting for defendants with the descriptions of the lands, pointed out to them the tracts selected for their entries. It is quite apparent, however, that in some instances slight attention was paid to pointing out the right tract to the right man.

They then returned, their entry papers were prepared for them, sworn to, and they went to the land office under the personal supervision of one of the defendants or some one in their service. With very few exceptions their railroad fares, hotel bills, livery hire, fees for making oath to their papers, and their entry fees were paid, sometimes directly and at other times indirectly, by one of the defendants. Some never" saw the land they entered; others were in doubt whether the land they saw was the land they entered. The entrymen who testified as witnesses entered more than 30,000 acres of public lands.

The majority of them said that when their entries were made they did not intend to live on the lands. All who testified on the subject but three or four so swore. The majority, being deceived by the representations made them, probably acted in good faith; but in fact they never intended to do those things requisite to actual settlement and residence on the lands embraced in their entries. Various persons acting for defendants, though independently of each other, made the same misrepresentations to the entrymen.

Agreeably to what was told them, many of the entrymen came back about six months later to visit their lands, and their expenses were paid as before. Some never alighted from the vehicles in which they rode to the range, some got off and ate lunch on their claims or in the vicinity, while others never got there at all. A less number went back a third Lime, six months after the second visit. This was the only settlement and residence made to comply with the law. All the improvements that were made were made at the cost of the Nebraska Company, or the defendants interested in it.

There was so much of this, of such regular, unvarying kind, and the connection of defendants with it was so close, that the jury was justified not only in believing the defendants knew the entrymen never intended to live on their lands, but that it was a part of their plan to continue in that way their own prior use and occupation. In that way the lands were withdrawn from bona fide settlement, and the government was defrauded, irrespective of any subsequent acquisition by defendants or the company of the title if the entrymen succeeded in making final proof.

As inducement some of the entrymen were told that upon final proof being made they could get S300 for their land, others $300 and still others $L an acre. Some were informed that the defendants or the company were to have the use of the land until filial proof in consideration of the money paid for expenses and entry fees.* Erom others a lease was taken before entry was made, and the expenses and fees deducted from fixed rentals.

Shortly before the act took effect "Richards arranged with a United States commissioner who lived about 30 miles away to go to Ellsworth on the 28th of June to act officially in swearing parties to applications and affidavits for homestead entries. They agreed upon the terms. The commissioner went: there and on the forenoon of the day tool* the oaths of 16 or 18 applicants in the office of the Nebraska Company in the presence of Richards and Jameson. Jameson handed the papers to the officer and presented the applicants to him as they came up to be sworn. The fee of the commissioner was $1 per person sworn.

At the end it was discovered the total paid him was short by a small ■sum. Richards paid the shortage. Richards supplied a number of the applicants with $1, and Jameson supplied the others. Shortly before June 28th Richards met Ered J. Houghton, who is charged as a party to the conspiracy, at Crawford, Neb., and told him lie wished to do some “colonizing,” and to have Houghton work for him by the month in securing the location of homestead entries; but Houghton refused to work in that way.

At a later meeting in Ells-worth it was agreed between them that he should receive $30 for each location, less the filing fee and expense connected with it. At Richards' request Houghton repeated in the presence of Comstock his understanding of the arrangement, and was corrected in one particular by Richards. He then went to work and procured eight men from Chad ron, Neb., and vicinity, who were among those sworn by O’Keefe at Ellsworth on the day the act took effect.

When Houghton was asked if he told them any one would assist than, he testified: “Why, I don’t think that I said to them that anybody would assist them. I told them—I don’t know whether I used Mr. Richards’ name, or whether I used the ranch name—but that they would put the improvements on the place for them, and If they made their proof and wanted to sell the land, that they would like the first opportunity to purchase their lands, and if they did so the money that would be paid for improvements would be applied on the purchase price; otherwise, Mr.

Richards thought he ought to have something for the use of his money.” As inducement to make entries Houghton gave two of them $25,. three or four of them $10,- and some of them $5. He rendered a statement of his disbursements, which was checked up by Comstock, and subsequently he was paid on the basis of $36 per man. The difference between this amount and the $50 agreed on equals the entry fee of $14 going to the register and receiver of the land office. The fair inference from the evidence is that some one on behalf of the company sent the papers to- the land office and paid the entry fees.

Four days before this occurrence at Ellsworth, Richards wrote Houghton as follows: “Dear Sir: Enclosed I send you twelve descriptions. I am writing Mr. Scovel by this same mail to advance you $50.00 each on presentation of your-receipts, etc. The United States commissioner will be here the morning of the 2Sth, and I see no reason why your parties, including Owens and all, cannot he here the night of the 27th with your papers made out, and we can have them in the hands of the receiver-by noón. I have been trying to get you over the phone, but could not.

Advise me of such other filings as you can by telegraph or telephone, or if you have unexpected some one who can come here at the last moment, send them down.” He afterwards wrote him eight letters about the accounts between them, the various entries and the entrymen. On, July 28th he wrote relative to the entry of Morton, one of Houghton’s entrymen: “It was possibly the most important one which was filed by any one who came down here. By Inquiry at the land office I find that Morton has 50 days from July 21st to pay the excess and complete his entry.

Thinking possibly the best thing to do would be to simply let it run along, and not say anything to Morton, or give any intimation that anything was being done, I have had a filing filed on top of it. This was done last week. * * * His application adjoined a windmill, and is an important one upon our ranch.

I gave him this filing, thinking that as brother of Claud Morton, who is a good steady boy, that he would be a good safe man, but I hear that quite the contrary is his reputation.” And on August 8th as follows: “I understand that he is not a reputable man, or a man that can be trusted in the slightest degree; otherwise, by dint of hard work we might get the filing reinstated, if you would want to take the responsibility of his filing and the outcome. It may he best to let it he reinstated, if possible.

I gave him the claim that he has because it was an important one.” Richards asked that this letter be returned to him. In another letter he expressed a doubt whether an entryman was one of Houghton’s and said: “My mother has recently made application for the same land. If it is friendly, she will apply for some other land.” In.a postscript he added that A. Triplett had possibly sought the same information, and that Triplett was inquiring in his (Richards’) behalf. Aquilla Triplett is a defendant. Guy O.

Vaughan was one of the eight entrymen who appeared before the commissioner and made oath at Ellsworth on June 28th. He testified Houghton solicited him to make the entry and promised him $25 if he would do so. ■ Richards handed him and others each $1 to pay the commissioner’s fee for taking the oaths and also furnished the description of the land to be entered. Jameson repaid the expenses of other applicants than Houghton’s who appeared at Ellsworth the same day, and furnished the description of the lands to be entered and the fees to be handed the commissioner.

He said “they” would make the improvements, without indicating whom he meant. None of these entrymen know who paid the entry fees at the land office, or what became of the papers they signed and swore to. Defendant Triplett superintended the entries of 1-1 or more persons who lived in Alliance, Neb., most of whom he personally sought and solicited by representations that their expenses would be paid, their improvements made for them, and that they need do no more than visit their claims once in six months.

With the exception of one man, who paid his own filing fee of $14, all who testified on the subject, and most of them did, said Triplett paid or gave them the money for the fees for taking oath to their papers and the filing fees. Sonic did not know who paid their railroad fare, buggy hire, and hotel bills. Those who did know said Triplett paid them. Triplett furnished the description of the lands entered. To one entryman he said the land was needed for pasture, and the improvements and expenses were given for the use of it until final proof.

To another he said the cattle company would put all improvements on the land until final'proof, and after that he (Triplett) would sell it to Richards and Comstock for $500. This entryman got two more for Triplett. When another observed on his second trip to his claim that the improvements had not beeen made, Triplett told him the carpenters had been so busy they couldn’t get around to it, but would. To some lie said he thought their land could be sold to the “Spade” for $500 or $1,000. He offered one man $5 each for entrymen he might obtain.

One of tlie entrymen bad a misunderstanding with Triplett about his expenses. He went to see Jameson, and the latter said the company was to pay all expenses, and on proving up was to pay $500 for the land. It is necessary here to refer to the defendant Tpdd, who, with Huntington and Hoyt, also indicted, was tried separately. The evidence in the present case connects him with Richards, Comstock, and Jameson. In July and August, 1905, Richards wrote Todd four letters about various entries and entrymen.

In one he said: “We have concluded that it is hardly expedient at this time to have the men mentioned in your letter come up. On the contrary, jilease calculate to have all the ladies possible come up In October. They can act as each other’s witnesses, I should judge. We will have everything in readiness to take them out there and show them the land and improvements.” From March to July, inclusive, Jameson wrote him ten letters upon the same subjects. In one he said: “I note that you have quite a number whose declaratories expire the latter jiart of Aju’il.

Let them come out at any time, but in as small lots as you can procure the cheap tickets for.” In another: “I am sending you herewith cheek for $200, which I am simply charging-to your account. Use it for purposes necessary, and then render me your bill, and your account will have due credit.” On May 1, 1905, he wrote: “Enclosed I hand you check for $57.70; $10.70 of this amount is from (for) Mann’s expense account, $27.50 is for the Ellsworth account, and $10.50 for the bill of Trueblood Bros, for livery. I would prefer that you remit for these different items yourself, so send you the amount.

On April 8th I send you check for $200, which I charged to your account. Kindly render me a statement as to the disposition of this, so that I can give your account credit. * * * Relative.to the six from Milford who filed the 14th, I will refer this to Mr. Comstock, and he will reply to you to-day or to-morrow.” Samuel Mann, referred to in this letter, lived in Quincy, Ill. He assisted Todd and worked under his direction. In 1903-1905 he procured about 50 “soldiers’ declaratories,” so called, and sent them to Todd. In 1904 he assisted Todd in getting up a party of 10 or 12 entrymen to go to Nebraska.

When they arrived in Omaha the party divided. Some went to Ellsworth in charge of Todd, and the others to Gordon, Neb., with Mann. Todd had sent him the money for round-trip railroad tickets, and generally speaking their expenses were paid by Todd. Trueblood Bros., mentioned in the letter of Jameson to Todd, were liverymen at Gordon, Neb. They sent teams from 20 to 25 times to the Spade Range, conveying each time from four to seven old soldiers.

With two exceptions the livery bills were paid by James Hull and defendants Huntington and Todd; on two occasions they were paid by the check of the Nebraska Company, signed by defendant Jameson. Twice the soldiers themselves paid. In some cases Huntington furnished the descriptions of -the lands to be seen, and told the Truebloods where to drive them.

On June 14, 1905, Jameson, as secretary, wrote Todd, inclosing a check to pay “railroad fare for party of five from Quincy to Gordon.” Another letter inclosed a check for “amount expended for tickets, etc., and your own time and expenses.” In this one he said he would take immediate action to appeal from the order of the receiver of the land office rejecting the proof in one case. On June 26, 1905, Jameson wrote Todd: “I do not suppose there is any great hurry in sending the Milford men up here. X would a great deal sooner put it off for a while, and have you accompany them, than to have them come alone.

There is no doubt but tliat they need a manager, or some one to look after them, and you are best adapted for that part of the show.” Todd had procured eight entrymen from a soldiers’ home at Milford, near Lincoln, Neb., most of whom the evidence shows he solicited to go. Their railroad fare, livery and hotel bills, and filing fees were paid for them. The money for filing fees at the Valentine land office was pinned to the papers and handed by Todd to the entrymen, and by them in turn handed to the officials.

The usual representations about the building of houses for them and the necessity of only visiting the locations once in six months were made to a number of them. As already observed, the Todd party from Quincy, Ill., divided at Omaha, Neb. Seven of them were conducted by Todd to Ellsworth, where he turned them over to Jameson, who furnished their filing papers, went with them to the land office at Alliance, and paid the entry fees. He told them they would not have to live on the land, would llave to go there but once in six months, and that the grazing would constitute the improving.

Todd directed Maun, who took his division of the party to Gordon, to see the defendant Hoyt there. He did so, and Hoyt procured teams and a driver, who-acted as guide to the lauds. Several of the declaratory statements signed and sworn to by old soldiers in July, 1903, before Mann, and mailed by him to Todd at Plattsmouth, Neb., were afterwards without the knowledge of the signers altered in a material respect and filed in the land office, the filing fees being paid by some one not identified.

Todd also went to Danville, Ill., and the soldiers’ home in that vicinity, and employed an agent to secure declaratory statements from old soldiers. In June, 1901, shortly before the 28th, defendant Hoyt arfanged. with a stenographer to go'to Valentine, where one of the land offices was located. On the way the stenographer met Comstock and Huntington, and they got him an office in which he filled out papers for homestead entries. Comstock furnished 'the land descriptions and dictated them. The stenographer worked there about five days, and Comstock paid him for his services and expenses.

At the direction of Comstock, McElroy, a carpenter, of Gordon, Neb., reported to a foreman on the Spade Range, who had him build two small houses 12 by 14 feet in size. He also assisted in building three or four more. Rater Comstock contracted with him to build others at $03 each, everything to be furnished by McElroy but the hauling of the lumber. Accordingly lie built 16 at places where he found lumber piled. Each was frame, 12 by 14 feet, with one door and a half window. He settled with Comstock.

Comstock also arranged with him to bring a number of his friends to make homestead entries, to keep an itemized account of their expenses, and to send the bill to him, Comstock. McElroy said he got six or eight. They met Comstock and Huntington at Valentine, where the former furnished the descriptions of lands to he entered. The papers were prepared by the stenographer whom Comstock and Huntington located there. McElroy afterwards sent his hill for traveling expenses to the Nebraska Company and it was paid.

One of these entrymen testified that they registered at the hotel in Valentine “on a separate sheet of paper,” also that when their papers were prepared Huntington pinned a draft for $14 to them for filing fees. Todd got other entrymen at Plattsmouth, Neb., some of whom he personally accompanied. One went alone with a letter to Hoyt at Gordon, who saw that he had a team to visit the land and furnished him with money for filing fees and some expenses. In June, 1904, Huntington engaged Irving D.

Hull and James Hull to obtain as many declaratory statements of old soldiers as possible for use the day the Kinkaid act took effect, and also to get them to make homestead entries afterwards. The arrangement between Huntington and the Hulls was that when the soldiers came to make their entries leases should be taken from them. Huntington was to place the leases with the ranchmen at $100 each. Out of this sum the entryman’s railroad fare, traveling expenses, and entry fees were to be paid, and the balance was to be divided, half to Huntington and half to the Hulls.

Irving Hull was taken into the business, because he was a. veteran of the Civil War and had influence with his comrades. The ranchmen who- were to get the leases were to pay the lease money, and when final proofs- were made the lands were to be sold them for $600 per section, of which the respective entrymen were to receive $300, and Huntington‘and the Hulls the balance, less the expenses of subsequent visits of the entrymen to the lands. Huntington said he had seen Comstock a few days before, and had arranged to place all the filings.

Under this arrangement the Hulls sent Huntington from various places in Iowa a large number of soldiers’ declaratory statements, reciting that the .latter had been authorized as their attorney to select the lands to be entered. They also conducted a number of parties of old soldiers from Iowa to Nebraska, some of whom were turned over to Huntington upon arrival. Twenty-one of the entrymen procured by the Hulls testified at the trial. The inducements held out to them and their experiences were similar to those in other cases.

Not all testified upon the same subjects, but so far as they did there was a general concurrence. Upon arrival they were first driven in vehicles to- what was pointed out as their land; upon returning they executed leases, some thought to Huntington, others thought to the company; then they went before air officer and took oath to their entry papers, then to the land office, under escort, where their entries were made.

In some cases they were informed that $25 was the rental for six months, and they were given the balance of that, sum, after deducting the railroad fare, travel expense, and entry fees paid on their account. The entrymen were not given copies of the leases, and their recollection of their contents was vague. Huntington told one party they were for the grazing of cattle at $50 per year, the lessee to make the improvements on the land. In one case defendant Hoyt gave an entryman a check for $114 for the entry fee of one of the party and six months’ rental for four of them.

Ho}d also obtained the signature of an entryman to a lease. Irving Hull told one that the leasing for pasturage meant settlement on 'the land, and nothing more was required; to another he said a cattle company would lease the land, and that would be the same as farming or improving it. Entry-man Porter testified that on his second visit to the land in January, 1905, he was shown a different tract from that pointed out to him before he made his entry, and which he had marked. He said he had doubts whether he was observing the law, and asked Huntington if he was right, and the latter said he did not like to answer.

Entryman Tobin concisely stated the representations made him by Irving Hull as follows: “He said that I could enter a

section of land out in Nebraska ; that the cattle company there would lease that land of me by the year; that would pay my transportation out there to locate the -land and enter it, pay all expenses, hotel, sleeping expenses, pay for the registering fee at the entrance office; that after I had entered the land thejr would make the improvements on it required by the government; and that after I had title to the land they would buy it. I think I asked him what they would give for it. I think his answer was not less than $300.

That is all I can remember of the substance.” It was quite apparent to all concerned in these transactions that, considering the character of the land, many of the entrymen who 40 years or more before had served in the Civil War were incapable of complying with the homestead laws. It was manifest, also, that what defendants did in the matter of these entries bore none of the aspects of philanthropy and none of the aspects of the ordinary loan of money, save as it was to be repaid by the continued use of the land and ultimately tlie title.

Complaint is made of tlie exhibition in the presence of the jury of what purported to be a map showing- the exterior boundary fence of the Spade Range. It was made by an experienced surveyor, a Mr.

Alt, who testified that he had lived for 10 years in one of the counties in which the range was located, had been over the range many times, was familiar with it, had been at roundups of cattle therebn, knew tlie exterior fence, its place of location on tlie earth, and in a general way the courses thereof by township and range numbers, had made a definite survey of it of which the map was the result, and that the map was correct. ¡Te also testified that as he was making the survey employes of the Nebraska Company were engaged in removing tlie fence.

Other witnesses testified that portions of the fences shown on the map near where they lived belonged to the Nebraska Company, and that one of the defendants exercised dominion and control over it. The admissibility of the map was assailed, because the surveyor would not testify to the accuracy of the original government survey of the lands in that

section of the country which he adopted in preparing his map, or that all sections were not in a square form, and because he did not put upon the map the interior fences, but only indicated the points at which they intersected the exterior surrounding fence. Though lie said there were smaller inclosures within the big one, he testified they were a part of the Nebraska Company’s range. With all the proof of its accuracy the map might very properly have been received as evidence of what it purported to he, but the court from an abundance of caution excluded it.

It clearly appears that it was not exhibited to the jury in an objectionable way. There was simply a proper, consistent endeavor on the part of counsel for the government to establish a substantial foundation for its introduction in evidence. They pursued the ordinary, usual course by exhibiting it to witnesses to elicit testimony as to its verity. Krause v. United States, 117 Fed. 442, 78 C. C. A. 642. During his argument the district attorney said to the jury: “It is an actual map, as Mr.

Alt says, and a correct survey.” Counsel for defendants objected to the remark about the map, and the trial judge said: "The map is not in evidence.” The district attorney then said: *T am not exhibiting the map or quoting from it.” Counsel for defendants excepted to the remark. The reference to the excluded instrument was one of those mere inadvertences, not unlikely to happen in a trial so long and with evidence so voluminous. Tlie court promptly observed that the map was not in evidence, and made it clear to the jury they were not to consider it.

No further admonition or more definite ruling was sought, and counsel contented themselves with excepting, not to the ruling, or the failure of the court to make it more explicit, but the original remark of the district attorney. If cases are to be reversed because of such occurrences, there would never be an end to trials. On July 28, 1905, defendant Richards wrote Todd at Denver, Colo., saying they had concluded it was not expedient to have the men mentioned in Todd’s previous letter come on, and further: “On the contrary» please calculate to have all the ladies possible come up in October.

They can act as each other’s witnesses, 1 should judge. We will have everything in readiness to take them out there and show them the land and improvements,” etc. Defendants claim that counsel for the government was guilty of misconduct in referring to the letter and in his remarks about it. The letter was in evidence, and the passages referred to were not only relevant, but had! a direct bearing on the charge of conspiracy, though no entry by any of the women was laid as an overt act.

The letter showed a connection between Richards and Todd, and also the interest and active endeavor of the former in having entries made on the lands. Proof of the conspiracy was not to be confined to the specific overt acts charged in the indictment, but properly took a wide range. The remarks of counsel were within a proper scope of argument, which, as the term signifies, is not confined to a dry recapitulation of the evidence, but permits a reasonable latitude of comment and suggestion.

Various entrymen were allowed to testify over objection that at the time of their entries they did not intend to go upon the lands and establish actual residence, or live thereon, or make their homes there. We perceive no valid objection to such testimony. That the entrymen did not intend to comply with the law was one of the important facts in the case, and none could know better than they their actual intent. To affect the defendants, of course, notice or knowledge had to be brought home to them, but not necessarily by the particular questions referred to.

Every bearing of a material fact in a case does not have to be embraced in every question asked to establish it. There was much evidence, direct and circumstantial, tending to show the knowledge of defendants of the real intent of the entrymen and their purpose to avail themselves of it, and it is therefore unnecessary to consider this phase of the case from the standpoint of undisclosed intent.

To impeach the testimony of these entrymen, counsel for defendants had them identify certain ex parte affidavits obtained from them after the indictments were returned, and then offered them as part of the cross-examination. Upon objection the' court excluded them. The case of Entryman Child is selected as a fair example of all. The affidavit offered to impeach him contained nine separately numbered paragraphs. The only one that could have affected his testimony is as follows: “7. Did you make your entry for your own exclusive use and benefit and in good faith?

Yes." The affidavit was offered as an entirety, and it was objected to by the government upon the ground, among others, that the attention of .the witness had not been directed to particular parts of the instrument. Much of the affidavit was wholly irrelevant, and would have served only to incumber the record; and it was questionable whether any part of it contradicted tlie testimony previously given. If it was claimed it did, it was the duty of counsel, not only to the court and the adverse party, but also to the witness himself, to indicate the part relied on for impeachment.

The entryman was not a party to the litigation, and his statements were not admissible as independent evidence without preparatory foundation. It is a familiar rule, founded in a just conception of fairness to a witness, that his attention should be directed, not only to the time and circumstance of the prior declaration, hut also to the particular declaration itself which is claimed to be contraxy to that made upon the witness stand.

Moreover, immediately after the exclusion of the affidavit, defendants’ counsel in further cross-examination elicited from the witness an explanation of his testimony in chief and an express assertion of his good faith in making the entry, in that he understood the rule to be that if he was on the land once in six months and had it cultivated by grazing under lease, he complied with the law.

It is to be further observed that the part of the affidavit which had any possible bearing- on the testimony in chief was a mere repetition of what the witness swore to in his verified declaratory statement and his homestead affidavit, both of which had already been received in evidence. As to the excluded affidavits generally, it should also he said that the testimony they were offered to contradict related only to a small part of the counts under which defendants were convicted, The evidence showed that John P. Creager and others residing in Iowa were induced by Irving D.

Hull to go to Nebraska to make entries on lands in the Spade Range. After they arrived at Gordon, Neb., a livery team was obtained for them either by Hull or by Thomas ,M. Huntington, and they were driven about 20 miles to the vicinity of some windmills, where some lands were pointed out to them by the driver, acting under directions from Huntington. About six mouths later they again went from Iowa, and, having procured a team at Gordon, went to the same place, being driven, as Creager thought, by the same driver. Creager testified they could see five little buildings that had been put up.

He was asked: “Was there any one of these buildings that was pointed out to yoxx as being on your place ?” Counsel objected that no connection with defendants had been shown.

The objection was overruled, and the witness answered: “They said it was supposed to be our place.” The answer was not responsive to the question; but no objection was made to it, nor motion to strike it out, and counsel for the government again asked: “Well, was there any one that pointed it out to yoxi?” And the answer was: “Not in particular.” It is now urged that the first answer was hearsay, liven if defendants were in a position to complain, the matter is trivial.

There was a great mass of direct, undisputed evidence that defendants had many little buildings of that kind! constructed for the entrymen on the Spade Range according to agreement, to relieve them from making improvements, and Creager had already testified that Hull told him they would erect one on the laud he entered. But whether any one of these particular buildings was or was not within the lines of the particular tract Creager entered was unimportant.

No one conversant with the testimony in this record, almost entirely undisputed, can fairly regard the above .matter as of any moment whatever; and this observation applies in large part to many of the assignments of error. It is only by extracting the occurrences complained of from their explanatory andl qualifying surroundings that they assume such adventitious importance as to seem to merit attention. In Holmes v. Goldsmith, 147 U. S. 164, 13 Sup. Ct. 288, 37 L. Ed. 118, approved in Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L.

Ed. 278, the court said: “As lias been frequently said, great latitude is allowed in tbe reception of circumstaniial evidence, the aid of which is constantly required, and, therefore, where direct evidence of the fact, is wanting, the more the jury can see. of the surrounding facts and circumstances, the more correct their judgment is likely to lie. The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusiveness of the inferences it may afford in reference to ihe litigated fact.

It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth. The modern tendency, both of legislation and of tbe decision of courts, is to give as wide a scope as possible to the investigation of facts. Courts of error are specially unwilling to reverse cases because unimportant and possibly irrelevant testimony may have crept in, unless there is reason to think that practical injustice has beeu thereby caused.” Before the examination of the entrymen the government put upon the witness stand E- C.

Pettijohn, who had been the register of the land office at Valentine, Neb., for more than seven years prior to December, 1905, to identify various records in the office relating to the entries of lands. In tbe course, of a long examination he identified the homestead applications, affidavits, and other records relating to entries made by David G. Weiford and Albert Noble, and they were marked by the reporter for future reference. It is urged that this was error, because the transactions were not charged in the indictment as overt acts, and because Weiford and Noble did not testify regarding them.

It is sufficient to say of this that for some reason the two entrymen were not produced as witnesses and the records referred to were not offered or received in evidence. There was merely a preliminary identification of some public records, without even a description of the lands to which they related. It is impossible to see how this could have injuriously affected the defendants.

That those entries were not charged in the indictment as overt acts did not prevent the government from making them admissible by establishing a connection between them and tire defendants by other testimony, andl it should not be presumed it was not the intention to do so when they were identified. Such occurrences are common in trials. If the matter had been regarded by counsel as of importance, and attention had been directed to it at the close of the evidence, the court would undoubtedly have stricken out the testimony. But as it was, it merely incumbered the record.

In its instructions the court charged the jury as follows: “Witnesses have been called in tbe course of tbe trial wbo have testified to their own participation in fraudulent and criminal practices. Criticism has been made of their testimony, and the weight to which it is entitled. The court instructs you on this subject that it is the settled rule in this country that even accomplices in tbe commission of crime are competent witnesses, and that the government has the right to use them as witnesses. It is the duty of the court to admit their testimony, and that of the jury to consider it.

The testimony of accomplices is. however, always to be received with caution, and weighed and scrutinized with great care.

But the jury should not rely upon it unsupported, unless it produces in their minds the most positive.conviction of its truth.' It is just and proper in such cases for the jury to seek for corroborating facts and circumstances in other material respects; but this is not absolutely essential, provided (lie testimony of such witnesses produces in the minds of the jury full and complete conviction of its truth.” Complaint is now made of the first sentence, blit the exception taken when the charge was given embraced the entire paragraph.

Without considering whether the court was right or wrong in the preliminary recital about the witnesses, it is manifest the paragraph contains a number of propositions which are indisputably the law. An exception should be so framed as to indicate definitely to the trial court just what is objected to, so, if erroneous, it may at once be corrected. This also applies to the complaint of the instruction on reasonable doubt. A single sentence is excerpted for the brief and argument from the long paragraph embraced in the exception, parts of which are clearly unobjectionable.

The court refused the tenth, eleventh, and twelth requests of defendants which were as follows: (10) “The jury are instructed that if any member of the jury, after having considered all the evidence in this case, and after having consulted with his fellow jurymen, entertains a reasonable doubt of any defendant’s guilt, and after such consideration and consultation should entertain a reasonable doubt of any fact necessary to be proved to establish the guilt of that defendant, the jury caimot find such defendant ‘guilty.’ ” (11) “The jury are Instructed that the conspiracy charged in this case cannot be Inferred from mere circmnstanc.es of suspicion; hut the jury must be satisfied beyond a reasonable doubt that there was an agreement existing between the defendants, or two of them, as charged in the indictment.” (IT) “The jury are. instructed that, unless they find that a conspiracy was entered into between the defendants or two or more of them, they must find the defendants ‘not guilty’: that such conspiracy must not be guessed at, or found to be a fact from suspicious or suspicious circumstances, but that the jury, in order to find that there is such a conspiracy, must find that it is proved by the evidence beyond a reasonable doubt.” By the first of these requests a declaration was sought that, to find a defendant guilty, not only must each juror separately be convinced of his guilt beyond a reasonable doubt, but he must also be convinced beyond a reasonable doubt of the existence of each fact necessary to be proved.

This goes farther than the authorities relied on. State v. Witt, 34 Kan. 488, 8 Pac. 769; State v. Rogers, 56 Kan. 370, 43 Pac. 256; State v. Logon, 73 Kan. 731, 85 Pac. 798; People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50; Castle v. State, 75 Ind. 146. We think the subdivision of the case and the essential elements of the offense into separate matter for the separate determination of each individual juror would have served to confuse, rather than assist in a just and lawful verdict.

The unusual emphasis so given would have tended to destroy the interrelation between the important facts of the case and the probative value which comes from the concurrent existence of a number of them, each assisting in the proof of the other—in other words, the rationale of circumstantial evidence. The eleventh and twelfth requests are defective, in that they assume the charge of conspiracy is confined to the defendants, while the indictment names others not made defendants, and says there are still others unknown to the grand jurors.

Defendants’ 'twenty-third request, which was denied, is as follows: “Kotwithstanding you may believe that some of the entrymen may, at the time they made their entries, have had an intention not to live on the land embraced therein, the fact that they had no intention to live thereon is not material for your consideration in determining whether or not the defendants were acting fraudulently, unless you find that such intention not to live on the land was actually known to the defendants before or at the time such entry was made.

It is not sufficient for you to surmise or suspect such knowledge on their, part, but you must be satisfied from the evidence, beyond a reasonable doubt, that the defendants had such actual knowledge at the time such entries were made.” The request does not properly regard the nature of the offense charged.

If the defendants and others conspired to defraud the United States of the possession and use of its lands by fraudulent entries, made with intent of the entrymen not to comply with the law, the act and procurement of one conspirator in furtherance thereof is imputable to the others, though they might be ignorant of a particular entry so induced and the fraudulent intent of the particular entryman.

And if the conspiracy existed!, and the details of its execution were intrusted to agents who procured such entries to be made, the illegal intent of the entrymen would be material for consideration, though actually unknown to the defendants. If the conspiracy contemplated false, fictitious, or fraudulent entries of the kind in question, a party to it is chargeable with the acts consummating it, though not personally cognizant with all the details. Indeed, he might be guilty, though no entries were made at all. Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; Dealy v.

United States, 152 U. S. 539, 543, 14 Sup. Ct. 680, 38 L. Ed. 545. The other contentions about the instructions need not be discussed. Some are disposed of by what has been said, and many of them by the opinion of this court in Ware v. United States, supra. The judgment is affirmed. For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexe» For oilier cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’y Indexes