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Argument for the United States.

199 U. S.

indefinite period of time. Land patents issued to fictitious persons convey no title and are absolutely void. Moffat v. United States, 112 U. S. 24, 31.

By the consummation of the scheme, the Government would be defrauded out of the possession and use of lands covered by such apparent record titles, obtained by deception and fraud, for an indefinite period of time, to wit, until the fictitious character of its own patentees would be discovered. Until such discovery, those claiming under such apparent record titles would hold the possession of lands really belonging to the United States, and would appropriate and use the same, and the timber thereon, for their own benefit, and to the injury, detriment, and pecuniary loss of the Government. It is just as much an offense under § 5440 to defraud the United States out of the possession and use of its public lands as it is to defraud it out of the title to such lands. As to each and all of the elements or parts of the alleged conspiracy, it is charged in the indictment that the object and purpose thereof were to defraud the United States out of the possession and use of its public lands as well as out of the title thereto. United States v. Thompson, 29 Fed. Rep. 86.

The Government holds its public lands as a part of its trust; that is, as trustee for the people of the United States, United States v. Beebe, 127 U. S. 338, 342; Knight v. U. S. Land Association, 142 U. S. 161, 177; McDaid v. Oklahoma, 150 U. S. 209, 215; and, by the consummation of the scheme under consideration, the people would be defrauded out of their right under the public land laws to secure title to the particular lands covered by such apparent record titles until the discovery of the fictitious character of the patentees.

As to who is an "owner" see Anderson's and Bouvier's Law Dictionaries; Johnson v. Crookshanks, 21 Oregon, 339; Fallbrook Irrigation-District v. Abila, 106 California, 355; Rockford Ins. Co. v. Nelson, 65 Illinois, 415; McFeters v. Pierson, 15 Colorado, 201. The owner must have the absolute fee simple titie to come under the rules of the Land Office. Par. 16,

199 U.S.

Argument for the United States.

Instr., June 30, 1897, 24 L. D. 589; 31 L. D. 374, par. 14; Kern Oil Co. v. Clarke, 30 L. D. 550, 560; Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U. S. 301, 308.

The acts were committed with intent to deceive and the defendants are guilty of fraud and deceit.. Stewart v. Wyoming Ranch Co., 128 U. S. 383; United States v. Fox, 95 U. S. 670; United States v. Whalen, Fed. Cas. No. 16,669; Mitchell v. Kintzer, 5 Pa. St. 216; Bunn v. Ahl, 29 Pa. St. 387; 14 Am. & Eng. Ency. of Law, 2d ed., 140; United States v. Bunting, 80 Fed. Rep. 883; United States v. Curley, 122 Fed. Rep. 738; S. C., 131 Fed. Rep. 1; Tyner v. United States, 32 Wash. Law Rep. 258.

Procuring patents from the United States for its public lands by fraudulent representations to the legally constituted authorities, or by concealing from such authorities facts which if known would have defeated the issuance of the patents, is a fraud upon the United States. United States v. Beebe, 127 U. S. 338, 342; Colorado Coal Company v. United States, 123 U. S. 307, 313; United States v. Trinidad Coal and Coking Company, 137 U. S. 160.

While defendant's acts in fraudulently acquiring school lands from the States of California and Oregon, alone considered, or if disconnected from any purpose on the part of the defendants to exchange the lands so acquired, for public lands of the United States, would not constitute an offense against the United States, those acts constitute one of the links in the chain of which the conspiracy to defraud the United States is composed.

By tendering to the United States, in exchange for its public lands, the titles obtained by fraudulent practices from the States of California and Oregon for the sole purpose of making such exchange, the defendant has been guilty of an attempt to defraud the United States. Moreover, the same act or series of acts may constitute an offense equally against the United States and against the State, and subject the guilty party to punishment under the law of each government.

Argument for the United States.

199 U. S.

United States v. Marigold, 9 How. 560, 569; Cross v. North Carolina, 132 U. S. 131; Fox v. Ohio, 5 How. 410, 433; Moore v. Illinois, 14 How. 13, 19; Ex parte Siebold, 100 U. S. 371, 390. The indictment charges that the object of the conspiracy was to defraud the United States out of the possession and use of its public lands as well as out of the title to such lands. One who accepts the Government's offer to exchange lands under the act of 1897 becomes vested with the equitable title to the public lands which he selects, as soon as he has complied with all the requirements necessary to entitle him to a United States patent therefor and has secured the approval of his selection by the Land Department. Kern Oil Co. v. Clarke, 30 L D. 550, 556; S. C., 31 L. D. 288; Kern Oil Co. v. Clotfelter, 30 L. D. 583; Cosmos Co. v. Gray Eagle Oil Co., 190 U. S. 301, 312. See also as to point of time when equitable interest vests in party seeking to acquire patent to public lands, Carroll v. Safford, 3 How. 441, 446; Witherspoon v. Duncan, 4 Wall. 210, 218; Stark v. Starrs, 6 Wall. 402; Barney v. Dolph, 97 U. S. 652, 656; Wirth v. Branson, 98 U. S. 118; Simmons v. Wagner, 101 U. S. 260; Benson Mining Co. v. Álta Mining Co., 145 U. S. 428.

The rule of bona fide purchaser is the creation of courts of equity, and is enforced solely for the purpose of protecting that one of two innocent parties who is least to blame when one of them must suffer loss. It is never enforced for the protection of a guilty person. The rule was not adopted for the protection of swindlers. Riggs v. Palmer, 115 N. Y. 506.

A further element of the conspiracy as charged in the indictment is bribery of public officials.

The pther counts in the indictment are in the same form as the first, except that they refer to the first for a general description of the several conspiracies. Each count charges a separate conspiracy, and the defendants might be found guilty on one or more counts and not guilty as to other counts. The indictment as a whole makes the full record of the offense for which the conviction was asked, and would be ample pro

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tection to the defendants as against other prosecutions. Blitz v. United States, 153 U. S. 108; Peters v. United States, 94 Fed. Rep. 127; Wharton's Cr. Law, 154; Chitty's Criminal Law, 250. Should the indictment be considered too general, as to this or any other charge, a bill of particulars at the trial would supply all the necessary details. Wharton's Cr. Pr. § 702; Durland v. United States, 161 U. S. 306, 315; Rosen v. United States, 161 U. S. 29; Tubbs v. United States, 105 Fed. Rep. 59; McKnight v. United States, 97 Fed. Rep. 208, 213.

Section 1014, Rev. Stat., authorizes a removal to the District of Columbia. Benson v. Henkel, 198 U. S. 1. To construe the section otherwise would produce absurd and mischievous results which should be avoided. Maxwell on Interpretation, 179; Sutherland, Stat. Construction, § 323; Lau Ow Bew v. United States, 144 U. S. 47, 59.

MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

The petitioner assigns as error

1. That Rev. Stat. sec. 1014 does not authorize a removal from a judicial district in a State to the District of Columbia;

2. That the Supreme Court of the District of Columbia has no jurisdiction over the alleged offense charged in the indictment;

3. That the indictment charges no offense against the United States;

4. That the evidence introduced before the Commissioner proved that there was no probable cause for believing him guilty of the offense, and that the writ of certiorari should have been issued to bring the record before the court, and upon. its inspection the appellant should have been discharged.

1. The first assignment is practically disposed of by the recent case of Benson v. Henkel, 198 U. S. 1, in which one of the co-defendants of the petitioner in this case, who had been arrested in Brooklyn, was held to be properly removed to the

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District of Columbia under Rev. Stat. sec. 1014. No additional considerations being presented, that case must be treated as controlling.

2. The second assignment, that the Supreme Court of the District of Columbia had no jurisdiction of the alleged offense, is based upon the proposition that the conspiracy, if any existed, was entered into either in the Northern District of California or the District of Oregon, and that nothing but overt acts in pursuance of the conspiracy were done in the District of Columbia. Granting that the gravamen of the offense is the conspiracy, and that at common law it was neither necessary to aver nor prove an overt act, Rex v. Gill, 2 B. & Ald. 204; Bannon v. United States, 156 U. S. 464, 468, an overt act is necessary under Rev. Stat. sec. 5440 to complete the offense. The language of the section is, "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable," etc.

It was aptly said by Mr. Justice Woods in United States v. Britton, 108 U. S. 199, 204, that the offense consisted in the conspiracy, and that the overt act afforded a locus pœnitentiæ, 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. As the indictment in this case charges that the conspiracy was entered into in the city of Washington, it becomes unnecessary to consider whether an indictment will lie within the jurisdiction where the overt act was committed, though there are many authorities to that effect. King v. Brisac, 4 East Rep. 164; People v. Mather, 4 Wend. (N. Y.) 229; Commonwealth v. Gillespie, 7 S. & R. 469; Noyes v. State, 41 N. J. Law, 418; Commonwealth v. Corlies, 3 Brews. (Pa.) 575.

We have ourselves decided that, if the conspiracy be entered into within the jurisdiction of the trial court, the indictment will lie there, though the overt act is shown to have been com

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