ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.
MR. JUSTICE WHITE delivered the opinion of the court.
The United States prosecutes this writ of error upon the assumption that the decision of the District Court was based upon an erroneous construction of the statutes upon which the indictment was founded, and therefore, by virtue of the act of March 2, 1907, c. 2564 (34 Stat. 1246*fn1 ), the right obtained
to review the decision by writ of error direct from this court.
The indictment contained two counts. Without quoting then fully, it suffices to say, for the purposes of the questions which we are called upon to decide, if we have authority to decide them, that the first count charged that the eleven defendants illegally conspired, in violation of § 5440, Rev. Stat., with certain named persons and others unknown, to illegally obtain the title of certain coal lands belonging to the United States. The conspiracy was to be effected by procuring various persons as agents to enter coal lands in their own name, ostensibly for their own benefit but in reality for the use and benefit of the accused and a named organization; the purchases being made by the agents as above stated, not with their own money, but with money of the accused or the corporation, and under agreements to convey the title, when acquired, to the accused or to the corporation, thus enabling the accused and the corporation to obtain coal lands belonging to the United States in excess of the quantity which they were allowed by law to enter. Copious averments were made in the count as to the use of alleged false, fictitious and fraudulent papers in making the entries in question, which papers, as filed and entries made, had for their object and purpose to deceive the land officers of the United States, so as thereby to cause them to allow to entries in the name of the agents on the supposition that the entries were for the benefit of the entrymen, and which entries they would not have had the power to allow under the law, and would not have allowed had the truth been disclosed. The second count charged an illegal conspiracy to do acts made criminal by § 4746, Rev. Stat., in making and presenting, and causing to be made and presented, in connection with the entries of coal land, certain false, forged, fictitious, etc., affidavits and papers.
To clear the approach to the issues to be decided we bring into view the statutes which must be passed on. Section 5440, relating to conspiracies, was amended May 17, 1879, by changing
the penalties imposed by the section as primarily enacted. As amended this section is as follows, c. 8, 21 Stat. 4:
"SEC. 5440. If two ore more persons conspire either to commit any offense against the United States, or to defraud to 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 to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years, or to both fine and imprisonment, in the discretion of the court."
The text of §§ 2347, 2348, 2349 and 2350, which provide for the sale of coal lands belonging to the United States, is as follows:
"SEC. 2347. Every person above the age of twenty-one years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register or the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to such individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road.
"SEC. 2348. Any person or association of persons severally qualified, as above provided, who have opened and improved, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same, shall be entitled to a preference right of entry, under the preceding section, of the mines so opened and improved: Provided, That when any association of not less than four persons, severally qualified as above provided, shall have expended not less than five thousand dollars in working and improving
any such mine or mines, such association may enter not exceeding six hundred and forty acres, including such mining improvements.
"SEC. 2349. All claims under the preceding section must be presented to the register of the proper land district within sixty days after the date of actual possession and the commencement of improvements on the land, by the filing of a declaratory statement therefor; but when the township plat is not on file at the date of such improvement, filing must be made within sixty days from the receipt of such plat at the district office; and where the improvement shall have been made prior to the expiration of three months from the third day of March, eighteen hundred and seventy-three, sixty days from the expiration of such three months shall be allowed for the filing of a declaratory statement, and no sale under the provisions of this section shall be allowed until the expiration of six months from the third day of March, eighteen hundred and seventy-three.
"SEC. 2350. The three preceding sections shall be held to authorize only one entry by the same person or association of persons; and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof, and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions; and all persons claiming under section twenty-three hundred and forty-eight shall be required to prove their respective rights and pay for the lands filed upon within one year from the time prescribed for filing their respective claims; and upon failure to file the proper notice, or to pay for the land within the required period, the same shall be subject to entry by any other qualified applicant."
Section 2351 provides for conflicting claims in designated cases, and thus concludes;
"The Commissioner of the General Land Office is authorized
to issue all needful rules and regulations for carrying into effect the provisions of this and the four preceding sections."
Section 4746 of the Revised Statutes, embraced in the title "Pensions," was amended by the act of July 7, 1898, 30 Stat. 718, c. 578. The section, as amended, is as follows, the amendments which the law of 1898 enacted being printed in italics:
"That every person who knowingly or willfully makes or aids, or assists in the making or in any wise procures the making or presentation of any false or fraudulent affidavit, declaration, certificate, voucher, or papers, or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Commissioner of Pensions or of the Secretary of the Interior, or who knowingly or willfully makes or causes to be made, or aids or assists in the making, or presents or causes to be presented at any pension agency any power of attorney or other paper required as a voucher in drawing a pension, which paper bears a date subsequent to that upon which it was actually signed or acknowledged by the pensioner, and every person before whom any declaration, affidavit, voucher, or other paper or writing to be used in aid of the prosecution of any claim for pension or bounty land or payment thereof purports to have been executed who shall knowingly certainty that the declarant, affiant, or witness named in such declaration, affidavit, voucher, or other paper or writing personally appeared before him and was sworn thereto or acknowledged the execution thereof, when, in fact, such declarant, affiant, or witness did not personally appear before him or was not sworn whereto or did not acknowledge the execution thereof, shall be punished by a fine not exceeding five hundred dollars or by imprisonment for a term of not more than five years."
On behalf of the various defendants motions to quash the indictment were filed, which the court granted. The grounds of demurrer were substantially the same, many being addressed to technical attacks upon the sufficiency of the indictment, but in each of the motions the validity of the indictment
was assailed upon the ground that neither count stated an offense within the ...