IN BE WOLF.
tween two or more persons to do some unlawful act, or to do a lawful act in an unlawful manner. The agreement itself constitutes the offense, whether an act is done in furtherance of the object or not. Section 5440, Rev. St., is as follows: "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 persons do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty. * * *"
It is manifest that to constitute a criminal offense under this section the object of the conspiracy must be to commit some offense against the United States; that is, to do some act made a crime by the laws of the United States, or to defraud the United States; and that something must be done by one or more of the conspirators to effect the object of the conspiracy. The definition of this offense would be "an agreement between two or more persons to do some act which, by the laws of the United States, is a crime, and the doing of some act, by one or more of those who had so agreed, in furtherance of or to effect the object of the agreement." To constitute a good indictment under this section, it must charge that the conspiracy was to do some act made a crime by the laws of the United States, and it must state with such reasonable certainty the acts intended to be effected or carried out by the agreement of the parties so that it can be seen the object of the conspiracy was a crime. against the United States. The conspiracy or agreement, and the doing of some act in furtherance of it, make up the offense. The object of it, however, is a requisite of the indictment. To my mind, this indictment charges an agreement between Ross, Wolf, and Phillips, and other parties unknown, to obtain from the Cherokee Nation, by false pretenses, the sum of $29,500. It charges the unlawful agreement to cheat and defraud the Cherokee Nation of the sum of $22,500. It charges the means to be used by them in cheating and defrauding the Cherokee Nation. It charges they did an act in furtherance of the unlawful agreement, or to effect the object of the conspiracy, to-wit, the said Wolf and Ross received from Dennis W. Bushyhead, who was then chief of the Cherokee Nation, a large sum of money, to-wit, the sum of $22,387.50 in lawful money of the United States. The means set out in the indictment as being the method adopted by the unlawful agreement to consummate it, show tbe purpose to have been to commit the crime of obtaining money by false pretenses. Now, is this a crime against the United States, when committed in the District of Columbia? . Congress has power, by virtue of article 1, § 8, of the constitution, to exercise exclusive legislation over the District of Columbia. Congress, by the act of the twenty-first of February, 1871, which is now embodied in section 93 of the Revised Statutes for the District of Columbia, has provided that "all laws of the United States which are
not locally inapplicable shall have the same force and effect within the District as elsewhere in the United States." 'rhis statute makes section 5440, relating to the crime of conspiracy, applicable to the District of Columbia. Now, a conspiracy to do any act which has been declared a crime by any law of the United States, although such law may be applicable to the District of Columbia alone, would be a conspiracy to commit an offense against the United States, as violations of the criminal laws relating to the District of Columbia are of· fenses against the United States. Such laws are as much laws of the United St!l.tes as though their application was to the whole country. A. conspiracy to commit any act which by any law of the United States is a crime is a conspiracy to commit an offense against the United States. Is there any law in the District of Columbia which makes it an offense to obtain money by false pretenses? By the of congress of February 27, 1801, "the laws of the state of Maryland, as they now exist, shall be and continue in force in that part of the said district which was ceded by that state to the United States, and by them accepted." Section 92, Rev. St., relating to the District of Co. lumbia, provides "that the laws of the state of Maryland not inconsistent with this title, as the same existed on the twenty-seventh of February, 1801, except as since modified or repealed by congress, or by authority thereof, or until so modified or repealed, continue in force within the District." These provisions of law carry the laws of Maryland as they existed February 27, 1801, to the District of Columbia, and make them as applicable to such District as though such laws had been expressly enacted by congress. What is now called the crime of "false pretenses" was not indictable at common law, unless the fahw pretense consisted of a false token which would impose on the public generally,-such as getting property by means of a worthless bank-bill, or cheating by means of false weights or measures, such as the gallon, the yard, or a false seal affixed to cloth in order to enhance the price. The cheating which was indictable at common law as a false pretense was one effected by some illegal and deceitful practice or token which affects, or may affect, the pub. lie. The English statute of 30 Geo. II. c. 24, passed in 1757, was the first time the English law took notice of these private frauds known by the name of "false pretenses." This statute provided "that all persons who knowingly and designedly, by false pretense or pretenses, shall obtain from any person or persons, money, goods, wares, or merchandise, with intent to cheat or defraud any person or persons of the same, shall be deemed offenders. '" '" ." This statute was held to have created. an offense which did not exist before. It was considered by the English courts to exten:! every case where a party had obtained money or property by falsely representing himself to be in a situation in which he was not, or any occur· which has not happened, to which persons of ordinary caution
IN RE WOI,F.
might give credit. This English statute of Geo. II., by the constitution of Maryland, adopted in the year 1776, was carried to the state of Maryland, and made as much a part of the law as though her assembly had expressly enacted it; as by such constitution "all English statutes then in force in England or Great Britain, which have been introduced, used and practiced by the courts of law or equity" of Maryland, were adopted as the law of Maryland. 1 Charters & Const. 829. This statute of Geo. II. was in force in 1776. It was introduced, used, and practiced in the state of Maryland. It was the law of Maryland on the subject of false pretenses on the twentyseventh of February, 1801. By the act of congress of that date it was carried to the District of Columbia. For these reasons, I think it clear that getting money by false pretenses, when the act is done in the District of Columbia, is an offense against the United States. But it is hardly necessary to go to the law of Maryland to ascertain whether false pretenses is a crime, when the law of the United States, as applicable to the District of Columbia, in section 1162, Hev. St., relating to the District, provides that every person convicted of obtaining by false pretenses any goods or chattels, money, bank-note, promissory note, or any other instrument in writing, for the payment of money or other valuable thing, etc., "shall be punished," etc. There may be some question as to where we are to look for a definition of the crime prescribed by tbis act. But there can be no question as to where we can find a definition of the crime under the English statute, carried to the District of Columbia by a rather circuitous, yet effective, process. We find it in the interpretation of' the same by the English courts. To constitute the offense of false pretenses it must appear (1) that there was an intent to defraud; that an actual fraud was committed; (3) that the false pretense was made for the purpose of perpetrating the fraud; (4) that it was accomplished by these means. This is the crime against the United States which the petitioners are charged with conspiring to commit. While they are not charged with committing this crime, but only conspiring to commit it, .the indictment mllst set out enough to enable us to see that the act they have conspired to commit is a crime against the United States. I think the· indictment does this. It sets out the fraudulent agreement; the fraudulent design; the false and fraudulent means which were to be resorted to that the fraudulent end might be accomplished; and the doing of an overt act in furtherance of the unlawful design. The indictment, in my judgment, under the law, is sufficient to show jurisdiction of place and person, the existence of, and jurisdiction over, the subject-matter by the supreme court of the District of Columbia. It is claimed in argument that the allegation of falflity, as set out in the indictment in regard to the statements made by Ross, Wolf, and Phillips to the Cherokee Nation,-that the appropriation of
$300,000 to said nation, by the act of congress, of the third of March, 1883, was made as an additional payment to it for lands which it had already sold to the Pawnees, Poncas, Nez Perces, Otoes, and Missouries, and Osages,-is not true; as a matter of fact, such appropriation was made as an additional payment upon lands so sold, and if such representations were made by Ross, Wolf, and Phillips, instead of their being false, they were true. Whether these representations, if made, were true or false, is hardly material, as there are several other means set out in the indictment by which the conspiracy was to be accomplished, anyone of which would be sufficient to indicate the method of consummating the purpose of the conspiracy, all of which means are alleged to be false and fraudulent. I am of the opinion that the position of petitioners' counsel on this question is correct. The Cherokee Nation agreed with the United States, by the sixteenth article of the treaty of 11:;66, that the United States might settle friendly Indians on its lands west of ninety-sixth degree. It further agreed that it would sell to such friendly Indians as the United States might settle on their lands such amount of land as was necessary to give each member of said tribe so settled 160 acres; said lands thus disposed of to be paid for to the Cherokee Nation at such price as may be agreed on between the said parties in interest, subject to the approval of the president; and if they should not agree, then the price to be fixed by the president; the Cherokee Nation to retain the right of possession of, and jurisdiction over, all of said country west of ninety-sixth degree of longitude until thus sold and occupied, after which their jurisdiction and right of possession to terminate forever. This provision of the treaty is clearly an agreement to sell to friendly Indians, who the Cherokees agree with the United States may be settled on the land. The Cherokees have sold portions of their land to the Pawnees, Poncas, Nez Perces, Otoes, and Missouries, and Osages. An agreement was entered into to sell to the Cheyennes and Arrapahoes which was never consummated, as they never went on the land and occupied the same. They have no just claim to it, and it still belongs to the Cherokees. The Cherokees have never parted with any other of their lands west of the ninetysixth degree. It could hardly be presumed that the government was paying for lands in advance of a sale, or even an agreement to sell. The Cherokees agreed to sell to friendly Indians, the same to be their property only when sold to them and occupied by them. But it is said that all the lands of the Cherokees wel!t of ninety-sixth degree, not sold to friendly Indians, were appraised by the president under the act of congress of May 29, 1872. It is true that section 5 of that act provided:
The "president and secretary of the interior are hereby authorized to make an appraisement of the Cherokee lands lying west of the ninety-sixth degree of west longitude, and west of the lands of the Osage Indians. in the Indian