answer these' questions : BUi'ton's Bitters, are they a genuine medicine, for medicinalptirposes, or were they, asoharged by the gQvel'lirnent, a disguised form Of spirituqus liquors,intended for use as ,a beverage? If, Burton's Bitters were in:tended as a medicine, did they contain enough alcoholic to give an intoxicating quality? Did the defendantselHhem as a medicine, for medicinal purposes, and rione other? ' , Did he 'sell them as a beverage, or did he know that they were' purchased from him t6 be used as a beverage? Were they used by purchasers in his preseilce,:and with his knowledge, as a beverage i and did he continue to sell them to such purchasers after that knowledge was acquired? If the bitters are simply an intoxicating drink in disguise, and defendant knew this, you can find him guilty. If the bitters conti1in an intoxicating quality anli, are reaUya medicine, or are intended for medicinal l:\nd defendilnt, knowing that they could intoxicate, sold them to be used as' a beverage", or with the edge that they'were purchased used as a beverage, you may find h'imguilty. If he sold the bitters to any of his customers, and they, in his presence, or with his knowledge, used the bitters as a beverage. and with the knowledge thus acquired he continued to sell to them, you may find him guilty.
(DiBtrict Oo'u//"t; B.D. AlaT}(tma. February 18, 1889.)
Defendant entered Ii. claim, and on aplllication to commute hla , entry a casb entry be made affidavit, July 80, 1887, tbat be bad actually moved on tbe, said land in Decedlber,1886; tbat bis residence bad been on tbe'land up to taking saidoli.tb; that bisresidence tbereon had been con· tinuous; and that he bad not resided or boarded elsewhere than on said land sl,ncecommencing bis residence ,thereon. Defend!tnt's was made be' f.c;>re a. judge of probate. 'fJeld" that 'the statements sworn to were not such ali required or authorize(}'by law to be made 'by an applicant for a pre· emptIOn, homestead, or a homestead commutation entry, under Rev. St. U. . 2262, 2289-2291. They were irrelevant and immaterial, and perj ury could 2[ot be predicated on them.' N , , 8. SAME-COll(pETENCY OF TRIBUNAL-PROBATE JUDGE. Under Rev. St. U. S. 58lJ2, denouncing the crime of perjury, and declaring .', that the oath must be taken be£ore Borne "competellt tribunal, oflcer, or per· son, .. as the judge of probate had nO authority to administer such, oath, an indictment for perjury will not lie. ' ,
OF HO)!ESTEAD ,ENTRY.
Demurrer to Indictment forPerjury. Defimdant entered a quarter section ofland in Escambiacounty, Ala., tinder Rev. St. U. S. § arid afterwards, under sectlon 2301, comfun'ted his homestead entrY'into atlash entry. The willfully false declarations or statements which the'defEmdnnt is cbargedtohave made are con-
, JReported byP. J. Hamilton, Esq., of the Mobile bar.
.',UNI!l'ED STATES' fl. HOWAB!O.
t,ained41,his ,affidavit of July 30, 1887, made a.t the time his application and proof to commute his homestead to cash was made, and to the truth of .which d;eclarations or ,statements the defendant m6de oath before the jU(lge or probate in and for the county of Escambia, in this state. These Qut in thE: indictment, are, in substance, declarations or statements, that defendant actually moved on said land in December, 1886; that his actual residence has been on said land up to the filing or taking !laid oath; ,tbat his residence thereon has been actual and continuous; and that he :has not resided or boarded elsewhere than on said land since commeu<;lillghis residence thereon,-which statements the indictment alleges were material" and were willfully false, and contrary to what def!=ll1dantbelieved to be trUe. The indictment contains two counts, which, as respects any matter now to be determined, do not substantially differ, except that the second count alleges that the statements were subscribed and sworn to, and that ,the defendant therein stated he had built a house, and had a half acre of land fenced and in cultivation. ,John D. BurneU, U. S. Djf'-t.Atty. J. M. Davison, M.B.Kelly, J.J. Parke:r, and Wm. D. McKin8tryJ, for defendant· . TOULMIN, J., (after 8wtingthe fact8 a8 above.) The controlling questions raised by the demurrers are-Fir8t, as to the authority of the judge of probate to 'administer the oath upon the falsity of which the indictment is laid; and,Becqnd, whether the oath was one required bylaw of defendant in the, particular matter to which it relates. To constitute perjury it is essential that the oath was administered ill the manner prescribed by law; and by some person duly authorized to administer the same in the matter or cause wherein it was taken. U. S. v.Deming, 4 McLean, 3; U. S. Babcock, Id. 113; U. S. v.Wilcox, 4 Blatchf. 391; U. S. v. Ourtis,J07 U. S. 671,2 Sup. Ct. Rep. 507; 3 Whart. Crim. Law, §§ 2244, 2245. And the oath must be one required by law in such a case. U. S. v. ff'tCkerson, 1 Spr.232; lIinnv. Com., 96 Pa. 8t.235; Peap18v. Fox, 25 Mich. 492; State v. Orumb, 68 Mo. 207; GibBon v. State, 44 Ala. 17; White v. State, 1 Smedes &M.156. In making final homestead proof under section 2291, Rev. St. U. S., the homestead settler may make the affidavit and proof required by that section in support of his claim before the register or receiver,or before the judge, or, in his absence, the clerk of some court of record. If the homestead settler does not wish to remain five years on the land, the law permits him to pay for it with cash, and' to obtain apaten't therefor from the government. In other words, he may abandon his rights ,under the homestead law, and avail himself of the benefits of the law granting pre-emption rights. .See sections 2301, 2259, Rev. St. When this is done it is called a "commuted homestead entry." The affidavit required to be made by the settler in such case shall be made before the register or receiver, or before the clerk of the oo1'lnty court, or some court of record' of the county' and state ofJune or district in which the land is situated. S.ee act of 9, 1880, (1 Supp. Rev. St. U. S. 542,) and section 2262, Rev. St.,
which prescribes the oath of the pre.emptionist. lilt is fundamental in the law of criminal procedure that an oath before one * * * who, although authorized to administer some kind of oaths, but not the one which is brought in question, cannot amount to perjury at common law, or subject the party takingit to prosecution for the statutory offense of willfully false swearing." U. S. v. Curtis, ifUpra. The statute declares that the oath must be taken before some "competent tribunal, officer, or person." ltmeans that the oath must be permitted or re-luired by the laws of the United States, and be administered by some tribunal, officer,· or person authorized by such laws to administer an oath in respect of the particular matters to which it relates. Section 5392, Rev. St. A person cannot be convicted of perjury for taking a false oath before one not empowered by law to administer the oath. State v. Phippen, 62 Iowa, 54,17 N. W. Rep. 146. So the question is whether the judge of probate was, at the time of the oath taken by defendant, authorized by the laws of the United States to administer such oath. The matter on which the perjury is assigned grew out of an affidavit made by the defendant on his application for a commutation of his homestead entry under section 2301, Rev. St. U. S. The statements sworn to, and which are alleged to be false in the indictment, are not the statements required or authorized by Jaw to be made in the affidavit of an applicant for a pre-emption, a homestead, or a homestead commutation entry. Seeseetions 2262, 2289-2291, Rev. St. U. S. They were therefore wholly irrelevant and immaterial. Perjury cannot be predicated upon them, however false they may be. Oath as to mere surplusage and immaterial statements cannot support a conviction for perjury. The officer before whom the oath was taken had no power to construct a new oath, different from that prescribed by the statute. My conclusion is that thejudge of probate had no authority in law to administer the oath charged in the indictment, and that the said oath was not one required by law in such a case as that set out in the indictment. The indictment is therefore fatally defective,-and the demurrer to it should be sustained. It is so ordered.
«(Jircuit Court, E. D. Michigan. February 6, 1889.)
ARMY AND N.,\v;y-ENLIBTMENT-M!NORB-DIBCHARGE-CONFINElIfENT FOB DEBER'rION.
,will not. b.e
A minor soldier of the army, in confinement under a charge of desertion, from military service until he has been released from such confinement. ' A minor's contract of enlistment is not void, but voidable.
It Beems· that if he be over 16 years of age he can only be discharged upon the application of his parent or guardian: otherwise. if he be under 16, or if he were insane or intoxicated at the time of his enlistment. (Syllabw b1l tM Court.)