receipt. They contend that, except in certain specified cases, which are not material for consideration here, the action of the local land officers concludes the government, and the general land office has no jurisdiction to supervise such action or correct any wrongs done in the entry.

Subsequently to the issuing of the writ of error in this case, this precise question was presented to this court (Orchard v. Alexander, 157 U. S. 372, 15 Sup. Ct. 635), and the jurisdiction of the land department was affirmed; a jurisdiction not arbitrary or unlimited, nor to be exercised without notice to the parties interested, nor one beyond judicial review under the same conditions as other orders and rulings of the land department.

In this case the entryman was brought in by due publication of notice, and the real party in interest appeared. The contest was carried through the land department from the lowest to the highest officer, and there is nothing in the record which brings the case within the rules so often laid down for a judicial reversal of the decisions of that department.

Much reliance is placed upon the seventh section of the act of March 3, 1891, supra, and it is contended that before any adverse rights were created congress ratified and confirmed the entry made by Simpkins. We think that statute inapplicable. It was passed long after the action of the land department in canceling the entry and restoring the land to the public domain, and when there was no subsisting entry to be confirmed. The theory of the plaintiff in error is that the act applies to all entries which had ever been made prior thereto, whether subsisting or canceled. But clearly it refers to only subsisting entries. An entry is a contract. Whenever the local land officers approve the evidences of settlement and improvement and receive the cash price. they issue a receiver's receipt. Thereby a contract is entered into between the United States and the pre-emptor, and that contract is known as an entry. It may be, like other contracts, voidable; and is voidable if fraudulently and unlawfully made. The effect of the entry is to segregate the land entered from the public domain, and while subject to such entry it cannot be appropriated to any other person, or for any other purposes. It would not pass under a land grant, no matter how irregular or fraudulent the entry. When, by due proceedings In the proper tribunal, the entry is set aside and canceled, the contract is also terminated. The voidable contract has been avoided. There is no longer a contract, no longer an entry, and the land is as free for disposal by the land department as though no entry had ever been attempted. The term used in the section, "confirmed." implies existing contracts, which, though voidable, have not been avoided, and not contracts which once existed, but have long since ceased to be. If the act is not limited to existing entries, existing contracts, then it must apply to all entries, all contracts, no matter when made, or how long since canceled, or what rights

have been acquired by others since the cancel lation. It would apply to an entry canceled years before, although the land has since been entered and patented to another; and would carry a mandate to the land department to execute a patent to one whose claims had been adjudged fraudulent, and in disregard of the rights created in reliance upon that adjudication. No such intention can be imputed to congress. The statute, as its language implies, refers only to existing entries, and does not reach a case like the present. The judgment is affirmed.

(164 U. S. 81)

UNITED STATES v. McMAHON. MCMAHON v. UNITED STATES. (November 2, 1896.)

Nos. 356, 357.

MARSHAL'S FEES ATTENDING EXAMINATIONS BEFORE COMMISSIONERS - SPECIAL DEPUTY MARSHAL-TRANSPORTING CONVICTS--MILEAGE-WARRANT OF COMMITMENT.

1. A marshal attending criminal examinations in separate and distinct cases upon the same day, before the same commissioner, is not entitled to fees in each case, but only to the two dollars per diem allowed by Rev. St. § 829. But where he attends examinations before two different commissioners on the same day, he is entitled to a fee of two dollars for attendance before each commissioner. U. S. v. Erwin, 13 Sup. Ct. 443, 147 U. S. 685, applied.

2. Special deputy marshals, appointed to aid supervisors of election, are not entitled, while on duty, to extra compensation for attendance before commissioners.

3. Under Rev. St. § 829, a marshal transporting convicts from his district to a prison in another district within the same state is entitled tors at the rate of 10 cents per mile for himself and for each prisoner and necessary guard.

4. Marshals are not entitled to fees for serving warrants of commitment. U. S. v. Tanuer, 13 Sup. Ct. 436, 147 U. S. 661, followed.

In Error to the Circuit Court of Appeals, for the Second Circuit.

82

These were writs of error sued out by both* parties, to review a judgment of the circuit court of appeals for the Second circuit, affirming, except in one particular, a judgment of the circuit court for the Southern district of New York for $4,843.60 in favor of the petitioner, McMahon, for fees and disbursements as marshal for that district from July 7, 1885, to January 12, 1890. The opinion of the court of appeals is found in 26 U. S. App. 687, 13 C. C. A. 257, and 65 Fed. 976.

The assignments of error filed by both par ties are set out in the opinion of the court. Asst. Atty. Gen. Dodge, for the United States. R. R. McMahon, for McMahon.

Mr. Justice BROWN delivered the opinion of the court.

In these cases the government assigns as

error:

1. The allowance of a charge of two dollars per day for attending criminal examinations in separate and distinct cases upon the same day; these examinations being on

some days all before the same commissioner, and on others before different commissioners. The evidence does not disclose how much of this amount is applicable to each class of cases.

By Rev. St. § 829, the marshal is allowed "for attending the circuit and district courts, ** and for bringing in and committing prisoners and witnesses during the term, five dollars a day," and "for attending examinations before a commissioner, and bringing in, guarding and returning prisoners charged with crime, and witnesses, two dollars a day; and for each deputy, not exceeding two, necessarily attending, two dollars day." If the fee were two dollars for attending examinations simply, it might well be held that he was entitled to that amount for each examination, though there were a dozen in a single day; but, as the allowance is not for each examination, but for each day, we think it clear that the marshal is only entitled to a single fee. It is scarcely possible to suppose that he would be allowed but five dollars for attending court, irrespective of the number of cases disposed of or of the number of prisoners brought in and committed, and yet be allowed separate fees in each case before a commissioner, which, in the aggregate, might be double the amount allowed for attending court. McCafferty v. U. S., 26 Ct. Cl. 1.

But when a marshal attends examinations before two different commissioners on the same day, we think he is entitled to his fee of two dollars for attendance before each commissioner. In the case of U. S. v. Erwin, 147 U. S. 685, 13 Sup. Ct. 443, we held that a district attorney was entitled to charge a per diem for services before a commissioner upon the same day that he was allowed a per diem for attendance upon court, and the argument controlling our opinion in that case is equally applicable here. It is true that in that case the charge was for attending before the court and before a single commissioner upon the same day; but where the officer attends before two or more commissioners, who may hold their sessions at a distance from each other, we see no reason why he should not be entitled to a fee in the case of each commissioner.

2. The allowance of two dollars per day to special deputy marshals for attendance before a commissioner on November 2, 1886, "said day being an election day." The finding is that for his service upon this day each deputy marshal received a per diem of five dollars. It is not directly found by the circuit court that these special deputies were appointed pursuant to Rev. St. § 2021, tit. 26, but, as it is so admitted in the briefs of counsel, and as this title makes the only provision for the appointment of special deputies, we may assume that to be the fact. The duties of such special deputies, who are appointed by the marshal to aid and assist the supervisors of election, are fixed by sections 2021-2023. They are, in general, to

special deputy marshal who is appointed and performs his duty under the preceding provisions, compensation at the rate of five dollars per day for each day he is actually on duty, not exceeding ten days."

As it appears by these sections that the attendance of the deputy before the commissioner is incidental to his service in arresting the fraudulent voter and taking him before the commissioner, we think it is covered by the per diem provided by section 2031. The allowance of five dollars per day was evidently intended to be full compensation for all services performed by him as such deputy. The assignment is well taken.

3. Exception is also taken to the allowance of fees at the rate of 10 cents per mile for transporting convicts from New York City to the state penitentiary in Erie county, in the Northern district of New York, instead of the actual expense of such transportation. By Rev. St. § 829, the marshal is allowed "for transporting criminals, ten cents a mile for himself and for each prisoner and necessary guard," with the following exception: "For transporting criminals convicted of a crime in any district or territory, where there is no penitentiary available for the confinement of couvicts of the United States, to a prison in another district or territory designated by the attorney-general, the reasonable actual expense of the transportation of the criminals, the marshal and the guards, and the necessary subsistence and hire." It appears that no prison in the state of New York has been express

ly designated by the attorney general for the 8 confinement of federal convicts, but by the state law it is the duty of the keepers of state prisons to receive and keep such convicts when sentenced to imprisonment therein by any court of the United States sitting within the state. Literally, the service charged for in this case does not fall within the second paragraph of the above section, since it does not appear that there is no penitentiary available within the Southern district of New York; nor does it appear that the penitentiary in Erie county has been designated by the attorney general for the confinement of federal convicts.

There are other provisions of law, however, which it is necessary to consider in this connection. By Rev. St. § 5540, originally enacted in 1856, "where a judicial district has been or may hereafter be divided [New York was originally a single district,-1 Stat. 73], the circuit and district courts of the United States shall have power to sentence any one convicted of an offense punishable by imprisonment at hard labor to the penitentiary within the state,

though it be out of the judicial district in which the conviction is had." Moreover, by Rev. St. § 5541, originally enacted in 1865, "in every case where any person convicted of any offense against the United States is sentenced to imprisonment for a period longer than one year, the court may order the same to be executed in any state jail or penitentiary within the district or state where such court is held," etc.; and by Rev. St. § 5542, a similar provision is made where the convict is sentenced to imprisonment and confinement to hard labor.

By a subsequent act of July 12, 1876 (19 Stat. SS), amending Rev. St. § 5546, convicts "whose punishment is imprisonment in a district or territory where, at the time of conviction, there may be no penitentiary or jail suitable for the confinement of convicts, or available therefor, shall be confined *

in some suitable jail or penitentiary in a convenient state or territory to be designated by the attorney-general," in which case the marshal is only allowed the reasonable actual expenses of transportation, etc.; "but if, in the opinion of the attorney-general, the expense of transportation from any state in which there is no penitentiary, will exceed the cost of maintaining them in jail in the state,

* * *

* then it shall be lawful so to confine them therein for the period designated in their respective sentences." We see no reason to suppose that this act was intended to repeal Rev. St. §§ 5540-5542, since the act is a mere re-enactment of original section 5546, enacted in 1864 (one year before section 5541), except that it permits the place of confinement of the convict to be changed whenever the penitentiary to which he is sentenced becomes unsuitable or unavailable at any time during the term of imprisonment; and by a further clause permission is given the attorney general to change the place of imprisonment whenever it is necessary for the preservation of the health of the prisoner, or the place of confinement becomes insecure, or the prisoner is cruelly or improperly treated.

Upon the other hand, it appears to us that it was the intention of congress that these several provisions should be read together, and that the restriction of the marshal to his expenses of transportation was only designed to apply where the attorney general has found that there is no available penitentiary within the district, and has designated a prison in another district for that purpose. It does not necessarily follow that, because a portion of his travel was outside his district, he is limited to his expenses, since the first paragraph of section $29, above quoted, is a general provision allowing him mileage with the exception provided for in the next paragraph. As the travel was actually made, the marshal is presumed to have earned his mileage, and the burden is upon the government to show that the transporta tion falls within the excepted clause. While he authority of the marshal, as such, is confined to his district, it may be lawfully extend

ed by the United States to other districts for special purposes; such, for instance, as the service of a subpoena, for which it has usually been held the marshal was entitled to mileage, though the service was made outside his district.

Sections 5540-5542 were apparently designed to apply to cases where the state contains more than one district, while section 5546 was prob-* ably intended, notwithstanding the use of the words "district or territory," in the first clause, to apply to the not infrequent cases where there is no suitable penitentiary within the state, in which case the court is authorized to commit the convict to some suitable penitentiary “in a convenient state or territory, to be designated by the attorney-general." This power has been frequently exercised by courts of the Western states by committing prisoners to penitentiaries in the Northern or Eastern states. Where the penitentiary is located in the same state, it would seem reasonable that the marshal should be entitled to his mileage, though the state prison may happen to be in another district; since it may be, in fact, quite as near to the place where his court is heid as it is to the place where the court is held in the district of its actual location.

Why these convicts were sent to a penitentiary outside the district in which they were tried does not appear, but we are bound to presume that the action of the court in that particular was taken for a good and sufficient reason, and was dictated by what it conceived to be the best interests of the government. As, under sections 5541 and 5542, it was within the discretion of the court to sentence the convicts to any penitentiary within the state, the mileage was properly allowed.

4. The last item to which exception is taken by the government is to a charge of two dollars for serving temporary and final warrants of commitment. As the court had previously disallowed a charge of $503 for serving temporary warrants of commitment, the allowance of this item was probably an oversight. In U. S. v. Tanner, 147 U. S. 661, 13 Sup. Ct. 436, we held that the marshal was not entitled to charge for mileage in serving warrants of commitment, upon the ground that he was allowed 10 cents mileage for his own transportation and that of his prisoner, and that the delivery of such warrants to the warden of the penitentiary was not a "service," within the meaning of section 829. We have seen no reason to change our views in that particular. The word "service," in this connection, ordinarily implies something in the nature of ang act or proceeding adverse to the party served, or of a notice to him, and, we think, was not intended to cover the case of a warrant deposited with the warden of a penitentiary as a voucher or authority for detaining the prisoner. Moreover, it is scarcely possible that congress could have intended to allow the marshal 10 cents a mile for his own travel when accompanying a prisoner, and at the same time to allow him 6 cents for carrying the warrant

As

of commitment with him; or to allow him 50 cents for a commitment of the prisoner and also $2 for serving a warrant of commitment, when the commitment would not be valid without the warrant, and the commitment and service of the warrant are contemporaneous acts. the per diem of the marshal for attendance before the court or commissioner includes "the bringing in, guarding, and returning prisoners charged with crime," and as, by section 1030, "no writ is necessary to bring into court any prisoner or person in custody, or for remanding him from the court into custody, but the same shall be done on the order of the court or district attorney, for which no fee shall be charged by the clerk or marshal," and no such warrant appears to be necessary under the practice in the state of New York, the issue of such warrants, except perhaps the first one, appears to be unnecessary.

In the case of the writ sued out by McMahon, the plaintiff assigns as error the action of the court of appeals in rejecting a charge for serving temporary warrants of commitment issued by a commissioner; but, as this is covered by the point last decided, it is unnecessary to consider it.

It results that in the case of U. S. v. McMahon the judgment of the court of appeals must be reversed, and the case remanded for a new judgment in conformity with this opinion.

(164 U. S. 76)

MCELROY et al. v. UNITED STATES.

(November 2, 1896.)
No. 402.

CONSOLIDATION OF INDICTMENTS.

1. Rev. St. § 1024, allowing the court to consolidate indictments found upon several charges against any person for the same act or acts, or two or more acts of the same class of offenses, which may be properly joined, does not authorize the consolidation of indictments in such a way that some defendants may be tried at the same time with other defendants charged with an additional crime different from that for which all are tried.

2. In case of conviction under such unauthorized indictments, judgment will be reversed on appeal, even though there is nothing in the record positively showing that defendants were prejudiced or embarrassed in their defense by the course pursued.

In Error to the Circuit Court of the United States for the Western District of Arkansas.

Wm. M. Cravens, for plaintiffs in error. Asst. Atty. Gen. Dickinson, for the United States.

Mr. Chief Justice FULLER delivered the opinion of the court.

George McElroy, John C. W. Bland, Henry Hook, Charles Hook, Thomas Stufflebeam, and Joe Jennings were indicted in the circuit court for the Western district of Arkansas for assault with intent to kill Elizabeth Miller, April 16, 1894, the indictment being num

bered 5332; also for assault with intent to kill Sherman Miller on the same day, the indictment being numbered 5333; also for arson of the dwelling house of one Eugene Miller, May 1, 1894, the indictment being numbered 5334. Three of these defendants, namely, "George McElroy, John C. W. Bland,* and Henry Hook, were also indicted for the arson of the dwelling house of one Bruce Miller, April 16, 1894, the indictment being numbered 4843. It does not appear that Jennings was tried. The court ordered the four indictments consolidated for trial, to which each of the five defendants duly excepted. Trial was then had, and resulted in separate verdicts finding the defendants guilty, and, after the overruling of motions for new trial and in arrest, they were severally sentenced on each indictment to separate and successive terms in the penitentiary, and sued out this writ of error.

The consequence of this order of consolidation was that defendants Stufllebeam and Charles Hook were tried on three separate indictments against them and three other defendants, consolidated with another indictment against the other defendants for an offense with which the former were not charged, while an indictment for feloniously firing the dwelling house of one person on a certain day was tried with an indictment for arson committed a fortnight after in respect of the dwelling house of another person.

Section 1024 of the Revised Statutes is as follows: "When there are several charges against any person for the same act or transaction, or for two or more acts or transac tions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated."

The order of consolidation under this statute put all the counts contained in the four indictments in the same category as if they were separate counts of one indictment, and we are met on the threshold with the inquiry whether counts against five defendants can be coupled with a count against part of them, or offenses charged to have been committed by all at one time can be joined with another and distinct offense committed by part of them at a different time.

The statute was much considered in Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410. In* that case the defendant was charged in different counts with two murders alleged to have been committed on the same day, and in the same county and district, and moved to quash on that ground, which motion was denied. Before the case was opened to the jury for the government, the defendant moved that the district attorney be required to elect on which count of the indictment he would claim a conviction. The motion was over

ruled, and he was required to go to trial upon all the counts. Upon the conclusion of the evidence the defendant renewed the motion that the government be required to elect upon which count of the indictment it would prosecute him, but this motion was overruled. The jury found separate verdicts of guilty of each murder as charged in the appropriate count. This court, speaking through Mr. Justice Harlan, said: "While recognizing as fundamental the principle that the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment and to be tried by one jury, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, in separate counts, of different felonies, at least of the same class or grade, and subject to the same punishment, is not necessarily fatal to the indictment upon demurrer or upon motion to quash or on motion in arrest of judgment, and does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial." It was decided that it could not be held from anything on the face of the indictment that the trial court erred or abused its discretion in overruling the defendant's motion to quash the indictment, or bis motions for an election by the government between the two charges of murder. The indictment showed that the two murders were committed on the same day, in the same county and district, and with the same kind of an instrument; and these facts justified the trial court in forbearing at the beginning of the trial to compel an election. And when the evidence was closed it appeared therefrom that the two murders were committed at the same place, on the same occasion, and under such circumstances that the proof in respect of one necessarily threw light upon the other; and that "there was such close connection between the two felonies, in respect of time, place, and occasion, that it was difficult, if not impossible, to separate the proof of one charge from the proof of another." As it was apparent that the substantial rights of the accused were not prejudiced by the action of the trial court, we declined to reverse on the ground of error therein.

It will be perceived that the two offenses were charged against one and the same defendant, and that the case disclosed such concurrence as to place, time, and circumstances as rendered the proof the same as to both, and made the two alleged murders substantially parts of the same transaction.

In the case at bar, the two indictments for assault with intent to kill on April 16, 1894. and the indictment for arson on May 1, 1894, were against all of the defendants, while the indictment for arson committed April 16, 1894, the same day of the alleged assaults with in

tent to kill, was against three of the defendants and not against the others.

On the face of the indictments there was no connection between the acts charged as committed April 16th, and the arson alleged to have been committed two weeks later, on which last occasion the government's testimony, according to the record, showed that the two defendants Charles Hook and Thomas Stufflebeam were not present. The record also discloses that there was no evidence offered tending to show that there had been or was a conspiracy between defendants, or them and other parties, to commit the alleged crimes.

The several charges in the four indictments were not against the same persons, nor were they for the same act or transaction, nor for two or more acts or transactions connected together; and, in our opinion, they were not for two or more acts or transactions of the same class of crimes or offenses which might be properly joined, because they were substantive offenses, separate and distinct, complete in themselves, and independent of each other, committed at different times, and not provable* by the same evidence. In cases of felony the multiplication of distinct charges has been considered so objectionable as tending to confound the accused in his defense, or to prejudice him as to his challenges, in the matter of being held out to be habitually criminal, in the distraction of the attention of the jury or otherwise, that it is the settled rule in England and in many of our states to confine the indictment to one distinct offense, or restrict the evidence to one transaction. Young v. Rex, 3 Term R. 98, 106; Reg. v. Heywood, Leigh & C. 451; Tindal, C. J., O'Connell v. Reg., 11 Clark & F. 241; Reg. v. Ward, 10 Cox, Cr. Cas. 42; Rex v. Young, Russ. & R. 280; Reg. v. Lansdale, 4 Fost. & F. 56; Goodhue v. People, 94 Ill. 37; State v. Nelson, 8 N. H. 165; People v. Aiken, 66 Mich. 470, 33 N. W. 821; Williams v. State, 77 Ala. 53; State v. Hutchings, 24 S. C. 142; State v. McNeill, 93 N. C. 552; State v. Daubert, 42 Mo. 242; 1 Bish. Cr. Proc. § 259. Necessarily, where the accused is deprived of a substantial right by the action of the trial court, such action, having been properly objected to, is revisable on error.

It is clear that the statute does not authorize the consolidation of indictments in such a way that some of the defendants may be tried at the same time with other defendants charged with a crime different from that for which all are tried. And, even if the defendants are the same in all the indictments consolidated, we do not think the statute authorizes the joinder of distinct felonies, not provable by the same evidence, and in no sense resulting from the same series of acts.

Under the third clause, relating to several charges "for two or more acts or transactions of the same class of crimes or offenses," it is only when they "may be properly joined" that the joinder is permitted, the statute thus leaving it for the court to determine whether in any given case a joinder of two or more of