(Oirc'Uit Uourt, D. 'Oregon. October 29, 1888.)
AND INFORMATION-DESCRIPTION OF OFFENSE-STATUTORY , CEPTION. " '
Where a statute declares an act done in the absence of certain circumstances , to be a crime, an indictment charging the commissiojl of such a crime must , negative the existence of such circumstances. An indictment under the /let of February 25,1885, (23 St. 821.1 for unlawfully inclosing a portion of the public lands, must show that the defendant is not any of the excepti'Ons permitting such inclosure. (Syllabus by the OOl/'I't.) : D.
PUBLIC LANDS-INCLOSING PuBLIC LANDS-INDICTMENT.
At·Law. Indictment for unlawfully inclosing the public lands. LewiJl L. McArthur, for the United States. Jamt8 F'. Watson, for· defendant;
DEADY, J. Section: 1 ofthe act of February 25,i 1 ?85, (23 St. 321,) .pr()hibits and declares unlawful "all inclosures of the public lands * * * by ariy * * to any or' which land * * * the person 11;, . or controlling .the inclosure had no claim or color of title DJade or acquired in g09d faith, or an asserted right thereto by or under claim made in good faith, with a view to .entry thereof at the proper under ,the general laws, of the, United States, at the time any such inclosure was or shall be made;" and.aection 4 of the act dechl,res that any person" violating any of the provisions" of the act "shall be deemed, guilty of a mis,demeanor," and fined not exceeding $1,000, p,nd i1Uprisoned not exceeding one year. . By the indictment in this case the defendant is accused of Ii violation of this statute in inclosing 640 acres of the public lands, in township 20 S., ot range 11 E., of the Wallamet meridian. The, defendant demurs to the ipdictment, because the facts stated therein do not constitute a crime. The demurrer to the first count, because ofa clerical omission, is confessed, while that to the second one is contested. ," It is alleged in this count that on August 1, lS85,the defendant "did .wrongfullya,nd unlawfully erect lj.nd construct an inclosure on the public Jands of United States, by which he without any lawful claim or polQr of title acquired in goodJaith, inclosed 640 acres" ofthe public .lands, as aforesaid. ", , . Thepointmade bycouns,el Qlqhe argument of the demurrer, is that the pleading does notnegatiye all the eXcfilptions ,contained in,the statute; that it is not enough to say that the inclosure was made "without any lawful claim or color of title acquired in good faith," but the indictment must go further, and negative the exception immediately following, by alleging that the inclosure of the land was not made under "an asserted right thereto, by or under claim made in good faith with a view to entry thereof at the proper land-office under the general laws of the United States."
It is commonly said that where an exception is containeu in the exacting clause of a statute the indichnehFmust :sh'owthat the defendant is not within it; bpt, if it is found in a sub$equent clauseor statute, then it is a matter of defense, to be shown by the accused. Nel80n v. U. S. 30 Fed. Rep. 116. '" . In U. S. v. Cook, 17 Wall. 173, it is said that the exception must not only be in the enacting clause, but must he "so incorporated with'the language defining the offense that the ingredients of the oflensecannot be accurately and clearly described if the exception is omitted." , Dr. Wharton (Grim. PI. § 241) gives this test: Does the statute create a general offense, or one limited to particularper80ns or conditions ? In the first case the exception need not be negative, while in the latter it must be. And the determination of this question does not depend, on the mere structure of the statute. "If it be clear that an act is only to become a crime when executed by persons of a particular class, particular conditions, then this class or those conditions must be set out in the indictment, no matter in ,what part of the statute they may be expres!'ed." ' , At the passageofthe act of 1885 the public, or a large class thereof, were pemlitted and authorized by law to go upon and inclose portipnEl of the pUblic lauds, with a view of acquiring title thereto under the preemption, homestead, and other auts of congress. An inclosure made' under such circumstances is made under "an asserted right" to the land, and "with a view to entry thereof at the under the law applicable thereto. Then comes act, and prohibits aqd makes' criminal the making or maintaining or any inclosure on the pUblic lapds under any other circumstances. This, in my judgment, leaves the mat-' tel' in a similar conditiori to that of the sale of spirituous liquors, where the same is prohibited and punishable if donewitho)Jta license. 'Ari in- , dictment for such a crime must charge that the sale waf;' rilade a license; and so here, an imlictme1lt charging a ,person with makiilg an illegal inclosure on the public lands should allegethat the act was done without the presence of the conditions or circulUstances which or license it .... Neither is the crime defined by the act a "general"one. The crime . it defines-'an inclos·ne of the public lands-is limited to particular sons j such as have" no claim ()f color of title" to the land inclosed, "Inade or acquired in good faith, or an asserted right thereto by or under clEltm made in good faith witr. a view to entry thereof at the proper under the general laws of the United States." The form of the pleading in this respeet will make but little difference in the trial of the case, a'3sJightproof of the:;e negative allpgations'\yill : shift the burden of proof onto thedefendant. But in the mean he: cannot be leg:>lly accused of unlawfully ereetingan inclosure on the publiQ lands, and put on his trial therefor, unless it from ,the thltt he is not within the excf.'ptions contained in the act 'making sl1ch ' inclosure ,a crilne. See Nelson v. U. S., brtpra, where this .questiOD ,was considered by this court. The demurrer.is sl1stained. .
UNITED STATES fl. MITCHELL
w: D. Penn8yl'Dania.
October 24, ts!:!!:!.
P08T-OFFIOE-USE OF }!AILS TO DEFRAUD.
For the purpose of deceiving an accident insurance conipany as to the date of tbe remittance of a st:m of money necessary to save from forfeiture the certificate of one of the defendants, and tQ, promote the allowance of his claim to indemnity, lost by the failure to remit in time, the defendants changed the date of the mailing stamp in the post-office where the letter was mailed, and stamped the letter with a false post-mark date, so as to give it the appearance of having been mailed several days sooner than it really was. Held, that the case was not within the intendment of section 5480, Rev. St., relating to schemes to defraud, to be effected by opening correspondence by mail, etc. 1
On Demurrer to Indictment. M. F. Elliott, for demurrer. The Un1ted States Attorney, contra.
ACHESON,J. This indictment is under section Rev. St., which providE;ls as follows:. . . "If any person. baving devised or intending to devise any scheme or artifico to defraud. or [to] be effected by either opening or intending to open correspondence or communicationwitb any other person 'I< * * by means of the.post-office establishment of the United States, or by inciting such other to open communication with the person so devising orintending. shall, and foI' executing such scheme or artifice, or atternptiug so to do, place any letter or packet in any post-office of the United States. or take or receive any therefrom, such person so misusing the post-office establishment shall be punishable. '. · ." " Discarding verbiage, the substantial facts to be extracted from the indictment are these: Austin Mitchell, one of the defendants, being the holder of a, certificate of membership in the Guaranty Mutual Accident Association of the City of New York, received an assessment notice in writing, requiring him to pay to the. association three dollars on or before April 19, 1887; in default of which payment his right to future indemnity would be lost. He neglected to comply with the requirement of the notice, and thus forfeited his rights. He subsequoQtly .set up a claim against the association for indemnity for an alleged accident happening to him shortly after April 19, 1887, and in furtherance of this claim in'Closed the aforesaid assessment notice, with three dollars, in an envelope addressed to the said association at New York city. This letter was rllailed at Millerton, Pa., on April 27, 1887; but in order to decei"e.-,tpe qillcers of said association, and induce them to believe .that it mailed in due time, the defendants changed the date of the mailing sttimp of the post:-office at Millerton, bytaking out the figures 27 ,aud 15, arid stamped the envelope with the date, April15, 1B87; instead of the true date, April 27, 1887. While not expressly allegeij:iri htdictment, the fact was stated by the district attorney at
lAs to what COhs'titutes the offense of using themailstodefraud.underltev.St. U. S.
v. Watson, 35 Fed. Rep. 358, and note.