that I verily believe him to be the person he represents himself to be; and that this affidavit was subscribed and sworn to before me this

-, 1902.

day of

The indictment then charges that, in further pursuance of the said unlawful conspiracy, and to effect the object of the same, the said Marion R. Biggs afterwards, to wit, on the 30th day of June, 1902, at Prineville, Or., did unlawfully prepare a certain other sworn statement for the signature of one Susie M. Duncan, who was another one of the persons who were to be suborned, instigated, and procured as aforesaid; that is to say, the sworn statement required of the said Susie M. Duncan as an applicant to purchase public lands under the provisions of the said acts of Congress, similar to the sworn statement hereinbefore set forth according to its tenor, but referring to certain public lands known and described as the southwest quarter of section 14, in township 15 south, of range 18 east (reference being made to the Willamette meridian and bass line).

Similar alleged acts of the said Biggs in pursuance of the alleged unlawful conspiracy, and to effect the objects of the same, are charged in respect to various others of the 100 persons referred to in the indictment.

Section 1 of the Timber and Stone Act of June 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545], provides:

*

"That surveyed public lands * valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale according to law, may be sold in quantities not exceeding 160 acres to any one at the minimum price of two dollars and fifty cents per acre; and lands valuable chiefly for stone may be sold on similar terms as timber lands."

Section 2 of the act, so far as it is applicable to the present case, is as follows:

"Sec. 2. That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation and valuable chiefly for its timber or stone * * that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not directly or indirectly made any agreement or contract in any way or manner with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself; which statenient must be verified by the oath of the applicant before the register or the receiver of the Land Office within the district where the land is situated; and if any person taking such oath shall swear falsely in the premises, he shall he subject to all the pains and penalties of perjury and shall forfeit the money which he may have paid for said lands, and all right and title to the same, and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void."

The third section of the act, so far as here applicable, is as follows: "Sec. 3. That upon the filing of said statement * the register of the Land Office shall post a notice of such application, embracing a description of the land by legal subdivisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication at the expense of such applicant, in the newspaper published nearest the location of the

*

*

premises, for a like period of time; and after the expiration of said sixty days, if no adverse claim shall have been filed, the person desiring to purchase shall furnish to the Register of the Land Office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as hereinbefore required; secondly, that the land is of the character contemplated in this act and, upon payment to the proper officer of the purchase money of said land, together with the fees of the register and the receiver, as provided for in case of mining claims in the twelfth section of the act approved May tenth, 1872, the applicant may be permitted to enter said tract, and on the transmission to the General Land Office of the papers and testimony in the case, a patent shall issue thereon."

By Act Aug. 4, 1892, c. 375, 27 Stat. 348 (U. S. Comp. St. 1901, p. 1547), the provisions of the above-mentioned act were extended to all the public-land states.

The form of the "written statement" which the act of Congress requires applicants for such land to file with the register of the proper district, together with the form of the affidavit to be made by such applicant, prescribed by the rules and regulations of the Land Department, are, as have been shown, set out in the indictment, and the record further shows the printed form prescribed by the Land Office for the taking of the testimony of such claimant both direct and cross, together with the form of the certificate to be signed by a United States commissioner of the district certifying that the applicant personally appeared before him, and that each question and answer in the deposition was read to him in the presence of the commissioner before he signed his name thereto, and that the same was subscribed and sworn to before such commissioner at the time and place to be stated, and further certifying that the commissioner has tested the accuracy of the affiant's information and the bona fides of the entry by a close and sufficient oral cross-examination of the claimant and his witnesses, directed to ascertain whether the entry is made in good faith for the appropriation of the land to the entryman's own use, and not for sale or speculation, and whether he has conveyed the land or his right thereto, or agreed to make any such conveyance, or whether he has directly or indirectly entered into any contract or agreement in any manner with any person or persons whomsoever by which the title that may be acquired by the entryman shall inure in whole or in part to the benefit of any person or persons excepting himself, and that such commissioner is satisfied from such examination that the entry is made in good faith for the entryman's own exclusive use, and not for sale or speculation, nor in the interest nor for the benefit of any other person or persons, firm or corporation, and to which form is annexed this:

"Note: Every person swearing falsely to the above deposition is guilty of perjury and will be punished as provided by law for such offense. In addition thereto the money that may be paid for the lands is forfeited and all conveyances of the land, or of any right, title or claim thereto, are absolutely null and void as against the United States."

It is well settled that the Land Department has the power to make reasonable rules and regulations, not inconsistent with any valid law, for the purpose of giving effect to the provisions of the acts of Congress providing for the disposition of the public lands, which have the force

and effect of law, and of which rules and regulations the courts take judicial notice. Caha v. U. S., 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415; Knight v. Land Association, 142 U. S. 161, 12 Sup. Ct. 258, 35 L. Ed. 974; Orchard v. Alexander, 157 U. S. 385, 15 Sup. Ct. 635, 39 L. Ed. 737; Cornelius v. Kessel, 128 U. S. 461, 9 Sup. Ct. 122, 32 L. Ed. 482; Hawley v. Diller, 178 U. S. 495, 20 Sup. Ct. 986, 44 L. Ed. 1157; In re Kollock, 165 U. S. 533, 17 Sup. Ct. 444, 41 L. Ed. 813; Cosmos Exploration Co. v. Gray Eagle Oil Co. (C. C.) 104 Fed. 20-43; Id., 112 Fed. 4-11, 50 C. C. A. 79, 61 L. R. A. 230. It is quite true, as argued by counsel for the plaintiffs in error, that no rule or regulation made by the Land Department is a law in the sense that it can make that a crime which is not made a crime by any statute of the United States. U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591. But the present is not a case in which the violation of a mere rule or regulation is made a crime; but, on the contrary, the crime charged against the plaintiffs in error is defined. by the statutes of the United States, expressly defining and declaring what shall constitute the crime of conspiracy and the crime of perjury. Rev. St. §§ 5440, 5392 [U. S. Comp. St. 1901, p. 3653]. Not only is there no statute of the United States conflicting with the rule of the Land Department requiring any and every applicant to purchase land under the stone and timber act, to make proof by deposition of the facts required by the statute to be declared and sworn to in his preliminary written statement or declaration, but such rule is in furtherance of and in accord with the requirements of the statute in that regard.

It is perfectly plain, from the provisions of the statute and the rules and regulations of the Land Department, that, in order for any person to effect a purchase of any land under the act in question, he must first make an application to purchase by a verified written statement, which statement is an affidavit as to the truth of the matters therein declared, and, after a compliance with the prescribed procedure, must satisfy the register of the local Land Office by deposition, in which he and such witnesses as he may produce are examined and cross-examined under oath, of the truth of the matters required by the statute to be shown as a prerequisite to the authorized purchase. It is just as plain that intentional false swearing by the applicant in either instance, in respect to any of the material matter so required to be declared and sworn to, constitutes the crime of perjury, which crime is defined, not by any rule or regulation of the Land Department, but by a statute of the United States.

The indictment, in effect, charged the defendants thereto with having conspired to falsely, willfully, and corruptly suborn, instigate, and procure certain named persons to commit the crime of perjury within the district of Oregon, by knowingly and intentionally swearing falsely to material matter required to be stated and shown both in the verified written statement or declaration, and in the proof by deposition. The whole scheme, as alleged, and proved to the satisfaction of the jury, shows beyond question that the false swearing contemplated by the conspiracy could not have been otherwise than willful

on the part of the instigated persons. When the facts alleged necessarily import such willfulness, the failure to use the word itself is not fatal. Such failure, under such circumstances, would not be fatal even at common law. C. R. L. 309; Archbold's Cr. Pl. 429. also, U. S. v. Howard (D. C.) 132 Fed. 350, 351.

See,

It is not the name but the essence of the thing that should control the court in the administration of justice. As has already been said, the gist of the offense charged against the plaintiffs in error was the conspiracy, the object of which was the commission of the crime of perjury by numerous persons, in order that the conspirators might acquire the government title to the desired lands. "In stating the object of the conspiracy," said the court, in United States v. Stevens (D. C.) 44 Fed. 141, "the same certainty and strictness are not required as in the indictment for the offense conspired to be committed. Certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is required. When the allegation in the indictment advises the defendants fairly what act is charged as the crime which was agreed to be committed, the chief purpose of pleading is attained. Enough is then set forth to apprise. the defendants so that they make a defense." See, also, Noah v. United States, 128 Fed. 272, 62 C. C. A. 618; United States v. Eddy (C. C.) 134 Fed. 114; U. S. v. Rhodes (C. C.) 30 Fed. 431.

We are of the opinion that the indictment is sufficient, and that the court below did not err in permitting proof of the false swearing of the instigated parties both in respect to their declaration in the verified written statement or application to purchase, and in the final proof made by deposition.

The plaintiffs in error also assigned for error various rulings of the trial court upon objections made by them to the admission of evidence. In passing upon such questions, it must not be forgotten that the character of the case is to be taken into consideration. It appears from the record that there was evidence tending to show that Williamson & Gesner were partners in the sheep business, and had a summer range for their sheep in what is called the "Horse Heaven Country," in Crook county, Or., about 25 miles from the town of Prineville, where they as well as Biggs, resided. The latter was a practicing attorney and a United States commissioner. The evidence also tended to show that all of the odd numbered sections of land in the township, in which was the summer range of Williamson & Gesner, were owned by a certain wagon road company from which Williamson & Gesner had leased for a number of years, for grazing purposes, some of those odd numbered sections; that in May, 1902, Williamson & Gesner learned that Morrow & Keenan, a rival sheep firm, had secured from the wagon road company a lease of practically all of its odd numbered sections in the township, and after endeavoring, without success, to defeat the consummation of the lease, Williamson & Gesner employed a surveyor to run the lines of the various sections of the township' for the purpose of determining whether the springs and streams of water in the township were on the odd or even numbered sections, which survey showed that the most valuable springs and streams

were upon the even numbered sections, still owned by the government. The evidence tended to show that this township, while partially covered with small timber having no market value at the time, had extensive stretches of fine grazing land with no timber thereon. The evidence further tended to show that Gesner employed Biggs to secure persons to apply to purchase this land under the timber and stone act, and that 45 such persons made application to purchase land selected for them by Gesner within the said township within a period of about two months; the necessary money for which being advanced by Gesner & Williamson. The evidence further showed that Biggs, Gesner, Williamson, and the latter's wife, applied to purchase similar land at the same time, with a number of the other applicants. The prosecution was allowed to introduce evidence, over the objection and exception of the defendants, to the effect that the lands. so applied for were not chiefly valuable for the timber upon them, but, on the contrary, were more valuable for grazing purposes. It is contended, on behalf of the plaintiffs in error, that the conspiracy, according to the averments of the indictment, "contemplated that subornation of perjury should take place only when lands subject to entry under the timber and stone acts were being applied for," and therefore that evidence tending to show that the lands applied for by the instigated parties were not of the character embraced by those acts was incompetent. This objection proceeds upon an erroneous view of the indictment, which does not charge that the conspiracy alleged contemplated that the subornation of perjury should take place only when lands subject to entry under the timber and stone acts were being applied for, but that the instigated parties would so swear -which is an entirely different thing, and quite in line with the alleged fraudulent scheme. It is clear from the language of the statute itself that it is only lands that are chiefly valuable for the timber on them that are authorized to be purchased under the acts in reference to timber lands; but, if authority to that effect be needed, it is found in United States v. Budd, 144 Ú. S. 167, 12 Sup. Ct. 575, 36 L. Ed.

384.

The prosecution was also permitted, over the objection and exception of the defendants, to introduce evidence against the defendants Gesner & Williamson tending to show that Gesner had tried to induce one Penny to apply to the state of Oregon for school land in the same vicinity for the benefit of Williamson & Gesner, and also tending to show that he had induced one Mary Swearingen to file on state land, and that she had made the necessary affidavit and filed on the land, and afterwards transferred it to the firm of Williamson & Gesner. The case shows that the government relied upon a chain of circumstances to prove that the defendants procured each and every one of the 45 entrymen to swear falsely in making his application, and in making his final proof, by swearing that he was not seeking to purchase the land on speculation, but for his own exclusive use and benefit, and that he had not, either directly or indirectly, made. any contract or agreement with any person by which the title which he might acquire to the land would inure to the benefit of another