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
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 poenitentioe, 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 committed
In this connection it is also suggested that, as the conspiracy is alleged in all the counts to have been entered into prior to January 1, 1902, as well as the overt act charged in fifteen of the counts, the Supreme Court of the District of Columbia cannot take cognizance of the case under the new code which took effect upon that date, and that we must look to the law prior thereto to determine the jurisdiction of that court. By section 23, Chap. 35, of the Compiled Statutes of the District of Columbia, it was enacted that "the Criminal Court of the District of Columbia shall have jurisdiction of all crimes and misdemeanors committed in said District, not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information."
The argument is made that, as the conspiracy in this case was triable in California or Oregon, as well as in the District of Columbia, it was lawfully triable in another court, and hence the Supreme Court of the District of Columbia has no jurisdiction. We are not impressed with the force of this contention. Chapter 35 provides for the organization of the judiciary of the District of Columbia, and relates exclusively to the jurisdiction and powers of the several courts of the District, providing that one of the justices may hold a Criminal Court, and that such court shall have jurisdiction of all crimes and misdemeanors committed in said District not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information. It is entirely clear that this has reference only to other courts within the District, and was not intended to change the law with respect to the general jurisdiction of courts having jurisdiction of the same offense.
Although it involves a seeming hardship to commit an accused person in San Francisco for trial in the District of Columbia, the terms of Rev. Stat. § 1014 are as applicable to such a case as they would be if the arrest were made in Baltimore.
3. The third assignment — that the indictment charges no offense against the United States — requires a statement of its substance. As it contains forty-two different counts and covers some ninety-four pages of printed matter, a consideration of each count would unnecessarily prolong this opinion. The conspiracy charged embraced certain false practices by the defendants, whereby school lands were to be obtained fraudulently from the States of California and Oregon by Hyde and Benson, (1) in the names of fictitious persons, and (2) in the names of persons not qualified to purchase the same, whereby the said Hyde and Benson were to cause and require such school lands to be relinquished by means of false and forged relinquishments, assignments and conveyances to the United States, in exchange for public lands to be selected, and for titles thereto by patents to be obtained by and on behalf of the said Hyde and Benson. A further element of the conspiracy
To grasp the significance of these somewhat complicated counts, and to appreciate the details of the offense charged, it should be borne in mind that the Government had granted to California and Oregon large tracts of lands, many of which were covered with forests, known as school lands. Congress subsequently changed its intention with regard to them and desired to retain them as forest reserves, and to reacquire the title thereto, and for that purpose, enacted a law approved June 4, 1897, 30 Stat. 11, 36, as follows:
"That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the Government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected."
It seems that both of these States had passed laws by which any citizen of the United States resident in such State, or any person who had declared his intention to become a citizen, might acquire from such States a section or half section of such lands at $1.25 per acre. They were required to make application to the land offices of the State, and to make the necessary affidavits to show that they were qualified to purchase them, and that they were purchasing them for their own use or benefit, and had not sold or agreed to sell the same. Doubtless the intention was that the sale should be made to person who desired to settle upon the lands, but there was
The argument of the defendants that while the procuring of these school lands from the States through persons who were not qualified to purchase them, and did not desire to purchase them for their own use, and by supporting their application by false affidavits and forged assignments of the certificates of purchase, might have been a violation of the policy of the States of California and Oregon, and a fraud upon such States, it fails to show that the United States could in any way have been defrauded. The argument assumes that the title acquired by the defendants from the States in question was such a title as, upon conveyance to the United States, would vest in the latter a title good as against all the world, and therefore that the United States was not defrauded.
While it is doubtless true that, by means of these corrupt and fraudulent practices, Hyde and Benson may have obtained titles to these lands, it does not follow that the States might not have disaffirmed such titles and recovered the lands. In this particular the case is covered by that of Moffat v. United States, 112 U.S. 24. Nor does it follow that, when subsequent conveyances were made to the United States of these lands under the act of June 4, 1897, a good title was vested in the grantee. In the Moffat case it was held that a patent issued to a fictitious person conveys no title which can be transferred to a person subsequently purchasing in good faith from a supposed owner. In delivering the opinion of the court, Mr. Justice Field observed: "The patents being issued to fictitious parties could not transfer the title, and no one could derive any right under a conveyance in the name of the
The argument that this indictment cannot be sustained because the United States, having received the school lands in lieu of the lands patented, were defrauded of nothing, if valid at all, applies equally to the school lands for which the States of California and Oregon must have received a statutory compensation, fixed at $1.25 per acre. Having received this compensation it may be said, with equal propriety, that they were defrauded of nothing. The result of the argument then is that, although a gross imposition was practiced upon the States, by the procuring of patents in favor of fictitious persons or of disqualified persons by the use of forged affidavits, assignments or other documents, no indictment therefor would lie because the States had received the same consideration they would have received had the patents been issued to persons qualified under the statutes to purchase the lands. The unsoundness of this argument needs no demonstration. The States have a right to punish a violation of a statute enacted as part of its public policy, notwithstanding they may have suffered no pecuniary damage therefrom.
The same argument applies to the United States whose lands have been procured in plain violation of the spirit, if not the letter, of the statute, and by a further step in the same fraudulent
Whatever may be the rule in equity as to the necessity of proving an actual loss or damage to the plaintiff, we think a case is made out under this statute by proof of a conspiracy to defraud and the commission of an overt act, notwithstanding the United States may have received a consideration for the lands and suffered no pecuniary loss. MacLaren v. Cochran, 44 Minnesota, 255. The law punishes the false practices by which the lands were obtained, and the question whether the Government stands in the position of a bona fide purchaser
Even if the United States were in a position to claim the rights of a bona fide purchaser to the state lands, the methods by which these lands were acquired from the States, and the lands in exchange therefor procured from the United States, would be none the less a fraud of which the latter might take advantage in a criminal prosecution. The indictment under section 5440 charges a conspiracy to defraud the United States out of the possession, use of and title thereto of divers large tracts of public lands, and if the title to these lands were obtained by fraudulent practices and in pursuance of a fraudulent design, it is none the less within the statute, though the United States might succeed in defeating a recovery of the state lands by setting up the rights of a bona fide purchaser. Under the circumstances it cannot be doubted that the United States might maintain a bill to cancel the patents to the exchanged lands procured by these fraudulent means, notwithstanding its title to the forest reserve lands might be good.
Other minor objections are taken to the indictment; that no description is given of the lands out of which the defendants are alleged to have conspired to defraud the Government, Dealy v. United States, 152 U.S. 539, 543; that it is uncertain in its allegations as to the means to be used to carry out the alleged conspiracy; that the names representing the fictitious persons and of those not qualified to purchase, through whom the fraud was effected, are not given; that the allegations of the indictment are indefinite and inconsistent; that the conclusion is improper, etc.
It is sufficient to say of these objections that they are proper to be considered by the trial court, and that we do not feel called upon to express our own opinion in regard to them. Criticisms of this character are completely covered by the recent decision of this court in Benson v. Henkel, 198 U.S. 1, as well as in the cases of Ex parte Watkins, 3 Pet. 193, 206, and Ex parte Parks, 93 U.S. 18, in both of which the petitioners sought
Our conclusion is that for the purposes of this case the indictment is sufficient.
4. The fourth assignment — that there was no probable cause for believing the petitioner guilty of the offense charged and that the writ of certiorari should have been issued to bring the record before the court — is based upon that clause of section 1014, which requires that proceedings for the removal of persons from one district to another shall be "agreeably to the usual mode of process against offenders in such State," and section 1487 of the code of California is cited to the effect that the petitioner shall be discharged where he has been committed upon a criminal charge without reasonable or probable cause. Certain cases are also cited from the Supreme Court of California, to the effect that it is the right of the prisoner to have the court consider the question of probable cause upon the writ of habeas corpus. People v. Smith, 1 California, 9; Ex Parte Palmer, 86 California, 631; Ex Parte Walpole, 85 California, 362. But see contra Ex Parte Long, 114 California, 159.
In the Federal Courts, however, it is well settled that upon habeas corpus the court will not weigh the evidence, although if there is an entire lack of evidence to support the accusation the court may order his discharge. In this case, however, the production of the indictment made at least a prima facie case against the accused, and if the Commissioner received evidence on his behalf it was for him to say whether upon the whole testimony there was proof of probable cause. In Re Oteiza, 136 U.S. 330; Bryant v. United States, 167 U.S. 104. The requirement that the usual mode of process adopted in the State shall be pursued refers to the proceedings for the
While the Circuit Court may have had power to issue a writ of certiorari auxiliary to the writ of habeas corpus, Ex Parte Burford, 3 Cranch, 448; In Re Martin, 5 Blatch. 303; Ex Parte Bollman, 4 Cranch, 75, 100; Church on Habeas Corpus, sec. 260, it was under no obligation to do so, and its refusal cannot be assigned as error. Certiorari is a discretionary writ, and is often denied where the power to issue it is unquestionable. People v. Supervisors, 15 Wend. 198, 206; People v. Stilwell, 19 N.Y. 531; Rowe v. Rowe, 28 Michigan, 353. Petitions for habeas corpus are frequently accompanied by applications for certiorari as ancillary thereto, and both are awarded or denied together. Appellant had nothing to complain of in the denial of the writ, and his petition should have set forth the evidence relied upon to show a want of probable cause. Terlinden v. Ames, 184 U.S. 270, 279; Craemer v. Washington, 168 U.S. 124, 128.
There was no error in the action of the Circuit Court, and its judgment is therefore
MR. JUSTICE PECKHAM, with whom concurred MR. JUSTICE WHITE and MR. JUSTICE McKENNA, dissenting.
I dissent from the opinion and judgment of the court in this case, and wish simply to state the grounds of my dissent without any attempt to do more. The indictment avers that the
I think this is not the case for the application of the rule
The expense to a defendant in his necessary preparation for trial, and in procuring the attendance of witnesses in his behalf from such a distance, must necessarily be enormous, and in many, if not in most cases, utterly beyond the ability of a defendant to pay. The enforcement of the criminal law should not be made oppressive in such cases, and, therefore, when it
I am authorized to say that MR. JUSTICE WHITE and MR. JUSTICE McKENNA concur in this dissent.