HUNTINGTON v. UNITED STATES; TODD v. SAME; HOYT v. SAME, 175 F. 950

HOOK, Circuit Judge. Thomas M. Huntington, Ami B. Todd, and Fred Hoyt were convicted of conspiracy to defraud the United States of the title, possession, and use of public lands in Nebraska by means of "false, feigned, fraudulent, untrue, illegal, and fictitious entries” under the homestead laws, and to commit the offense of suborning perjury. They were indicted jointly with Bartlett Richards and others, whose writs of error have just been disposed of (175 Fed. 911), but had a separate trial.

So far as they require consideration, the objections of the present defendants to the indictment are answered by the references in tlie opinion in the other case, and they need not be repeated That opinion may also be consulted for a description of the character of the case against them. .Irving D.

Hull, who was charged as a party to the conspiracy, testified for the government that he had been engaged by Huntington to get men who had had long service in the army of the United States to go to Nebraska and make homestead entries on public lands subject to the Kinkaid act (Act April 28, 1904, c. 1801, 33 Stat. 547 [U. S. Comp. St. Supp. 1909, p. 543]), and that Huntington said they could '‘prove up” by merely visiting the lands every six mouths.

Hull accordingly made the same representations to those he^ induced to make the entries, but they took the oaths regarding settlement, residence, and cultivation necessary in case of homestead entries. One of the entrymen also testified Huntington said the same to him. To rebut this feature of the government’s case defendants offered in evidence a letter to Huntington from one Uriah Clark, stating he had been informed that visits at six months intervals were sufficient, hut that the oath he took indicated he must make his home on the land, and asking Huntington’s advice how to hold the land without living on it.

They also offered a press copy of Huntington’s reply to Clark, in which he properly explained the requirements of the law. Counsel for the government said there was no objection to the letter written by Clark, hut that they objected to the press copy of the reply, because sufficient foundation had not been shown for the introduction of such secondary evidence. The two papers were joined in one offer. They were not offered separately. The trial court excluded them, and complaint is made of the ruling. We think the court was right.

The reasons given for Clark’s failure to attend the trial and for the nonproduction of the original reply of Huntington were mere hearsay, nor was sufficient diligence shown in the premises. The duty of segregation and selection of admissible from inadmissible evidence offered together cannot he imposed on a court, and, though no objection was made to the letter of Clark, that which was joined with it in the offer justified the rejection of both.

It may also be observed in this connection that, aside from the hare unsworn statements in Clark’s letter, it did not appear that he ever had any connection whatever with any of the transactions involved in the case, or had ever entered or fried to enter any lands in Nebraska. Stripped of incompetent support, the evidence offered was in the nature of self-serving declarations of the defendant Huntington. It is also urged by defendants that the court erred in excluding testimony of their witness McDowell.

He testified that in October, 1904, he was present at a conversation in Merrimau, Neb., between Huntington and three old soldiers, Smith, Card, and Van Slike. The court denied defendants’ offer to prove by McDowell that Huntington correctly explained to them the requirements of the law as to residence on lands entered as a homestead and read in full to them a form of homestead affidavit. This is claimed to be admissible as part of the res gestae.

The rule is that circumstances, acts, and declarations, which are so interwoven or connected with a transaction which is the subject of judicial inquiry as to be necessary to a just understanding of it, should be received in evidence; but they should appear to be its undesigned! accompaniments, free from any calculating purpose of those concerned. In other words, they should fit and have an immediate and natural relation to the principal fact.

But no act with which the three soldiers had to do was charged in the indictment as an overt act, there was no mention of them in the various counts, nor did the government introduce evidence of any transaction in which they participated, similar to those related in the indictment, for the purpose of showing the intent of defendants in their conduct charged as being contrary to law, nor evidence that defendants or any one for them solicited or procured those soldiers to make fraudulent or illegal homestead entries, or misrepresented to them the requirements of the law.

It did not appear that in fact they made entries. There was only casual and incidental mention of them in the evidence. It is suggested they belonged to one of Irving D. Hull’s parties, but this was not shown. Hull did not mention them, nor did the defendant Huntington, whose testimony preceded that of the witness McDowell. The statements imputed to Huntington did not accompany or illustrate any act involved in the case, but appeared to have been voluntarily made to strangers to the record.

Again, Huntington had already testified that his interest in the transactions in question was in the sale of leases obtained from the entrymen; so it is manifest such an interest might be subserved by encouraging some to make entries and by discouraging others. He was not engaged in the business without hope of compensation or reward for his labors and expenditures, and! whether he would likely receive it in a particular case would depend upon the attitude of the prospective entryman.

If the entryman was undesirable, there was no inducement to do otherwise than tell him what the law required in the way of settlement, residence, and improvément, and there was quite a general accord that the truth was a sufficient discouragement. The sufficiency of the evidence was challenged by a request for a directed verdlict, which the court denied. No useful purpose will be served by setting forth the details of the evidence.

That for the government w'as along the lines indicated in the opinion in the other case, and, though the defendants here testified in their own behalf and offered additional proof, the verdict of the jury had substantial support. The judgment is affirmed.