UNITED STATES V. WINGATE.
(Circuit Court, E. D. Texas. December 1,1890.)
RBvmw ON ApPEAL-EVIDENCE NOT PRESERVED IN RECORD. Where in an action by the United States to recover the value of timber wrongfUlly from public land and sold by the trespasser to defendant, there is no evidence preserved in the bill of exceptions tending to show whether or not defendant's vendor was a willful or inadvertent trespasser, no error can be predicated on the refusal of the court to grant an instruction as to the damages plaintiff is entitled to recover in case the trespass and taking were willful.
Error to district court. M. S. Jones, Special U. S. Dist. Atty. Burneu &; Handscom, for defendant in error.
PARDEE, J. The United States brought suit against the defendant alleging that one Thomas J. Carroll forcibly enteJ:ed upon the land and premises of the plaintiff, without the authority, knowledge, or consent of plaintiff, a-nd did cut and fell thereon 475 pine trees, of the value of $4 each, and did cut said trees into logs of proper lengths to be manufactured into lumber. Said logs when so cut contained, in the aggregate, 334,602 feet (board measure) of timber of the value of $5 per 1,000 feet before being manufactured into lumber, and of the value of $10 per 1,000 feet after being manufactured into lumber. That said Thomas J. Carroll delivered to defendant, Wingate, at Orange. Tex., 169,442 feet of said timber, in the log, (board measure.) which said timber was by said Wingate manufactured into merchantable lumber, of the value of $10 per 1,000 feet, and of the aggregate value of $1 ,694.42. That said timber, before and after being manufactured into lumber, was the property of plaintiff, and to which defendant had no right, all of which was well known to said defendant; yet, so knowing, defendant converted said timber and said lumber to his own use, and to plaintiff's damage $2,000, for which sum the plaintiff prayed judgment. Defendant answered pleading not guilty of the trespasses complained of, and, further, that, if he purchased the timber mentioned in plaintiff's petition, he did so in good faith, and without notice that said timber, or any portion of it, was cut off of plaintiff's land, if it was so cut, which defendant denies; that defendant not only had no notice that the timber was cut off of plaintiff's land, but has no reason to believe or suspect that it was cut or taken off of plaintifFs land; that said Carroll owned and still owns timber land in Calcasieu parish, La., and .openly sold'said timber as having been cut and taken from his own land, and all. timber purchased by the defendant from him ,was purchased and paid for in good faith, and upon the honest belief that it was cut off of his own land; further, that the timber sued for is, in its unmanufactured state, worth only $200, and the cost of the manufacture of the same into lumber is. $8· per 1,000 feet. Wherefore the defendant prays to be dismissed, with his costs, or, if it should, v.44F.no.2-9
appear that the timber described in plaintiff's petition, or any portion of the same, was cut off ,of ,plailltiff's land, that plaintiff recover only the value of such timber in its unmanufactured state, or the value of the lumber sued fort less the cost of lI,lanufacture,. A trialbefOO'ethe district court resulted in a verdict and judgment in favor of the plaintiff for
of the case, the following bill of exceptions was taken to ,,
_ "Be it reroe!Ubered," eto., "and 'the jury having been sworn and impaneled to try said callse,and,a true verdict render, and the evidence having been adduced, and the argument of counsel heard, the honorable the judge did proceed to charge the jury as follows, to-wit: 'That the severa} values of the timber alleged to have been cut from the lands of the United States, described in the petition, and purchased by B.!-t. Wingate from the odgi,naltre!lpasser, Thomas J. Carroll, have been, shown to be in its different· conditions as follows. to-wit: "Standing in the tree, fifty cents (50c.) per thousand feet; felled and lying on the ground where cut. one dollar ($1) per thousand feet; and in the' boom at 0tarige,whel'e delivered to the defendant, five and twenty-five hundredths dollal's ($5.2.5) per thousand feet, which price it is shown was paid for said timber by and. when sawed into lumber, ten dollars , ($10) per thousand feet." . That under the testimony the jury Ull1sttind that the defendant purchase!l s!\id timber in ,good faith;. and, being a purchaser in good faith, should the jury tlhd that he purchased alld came into possession of the timber in question, or portion thereof, the verdict of the jury must be for plaintiff for a sum not exceeding dollar ($1.00) per thousand feet, valuecof the timber when .fe)led and lying on the ground where cut.', To whiGhcharge. plaintiffs, by their counsel, M. 8. Jones, special assistant United States,attorney, excepted. and rl'quested the court to charge th<lt if the jury fO\lnd that the defendant, B. R.. Wingate, had purchased the timber in good faith; their verdict should .be in favor of the plaintiffs. the United states, in the amonnt of five and twenty-five one·hundredths dollars ($5.25) per thousand feet, the price paid to Thomas J. Carroll. the original trespasser, by said defendant, as shown by the said Wingate's books and testimony, if the jury found said Carroll was a bad faith; which said exception and request were oyerruled, an"- refused by the court, for the reasons following, to-wit: To which ruling plaintiffs except, and tender their bill, which was accordingly allowed and made of record in open court. ': The charge of the judge as given, and the refusal of the judge to charge as requested in relatjontothe amount of damages plaintiff was entitled to recover, are the errors assigned upon this hearing. In casas like the one under consideration, the rule of damages is very plainlylaid down in Wooden- Ware Co. v. U. S., 106 U. S. 432,1 Sup. Ct. Rep. 398; ,The syllabus of that decision is as follows: , "Whet'llthe plaintiff an action for timber cut and cal'riedaway from his land l'ecoversdamages, the rule for assessing them against the defendant is: (1) isa willt'nUrespasser, the full value of the property at the time and place of dElm,and, or ofsuitbrotight, with no deduction for his labor and expense... (2), Where be is an unintllntiona:l or mistaken trespasser, or an innocent vendee from such tL'espasser, the value at the time of conversion, less the amC'untwhich he 'and his vendothave added to its value. (3) Wilere he' is a purchaser without notice of wrong from a willfUl trespasser, the value at the tilne of such purchase."
.UNIXED ,STATES V. WINGATE.
Cases applying this rule will be found in U. S. v. Williams, 18 Fed. Rep. 478; Same v· .NeUner; 26.Fed; Rep. 82; Same'v. Ordway, 30 Fed. Rep. 31; Aurora Hill, etc., Min. Co. v. Eighty-Five Min. Co., 34 Fed. Rep. 521; flfurphy:iT.:Dunham, 38 Fed. Rep. 511; U.S. v. Scott, 39 J;'ed. Rep.901. In the charge given in this case, no attention seems to have been paid tq the question whether Of pot Carroll, the original trespasser, was a willful trespasser or an unintentional and mistak(:n The good faith referred to relates only tothe purchaser from the original trespasser. .In the' charge refused. attention is paid' to the good faith of both, the and of thedefendar!t purchaser. Whether"the court erred in the charge given, and in the refusal of the charge asked pends upon whether or not Carroll, the original trespasser, wasawillfU:l trespasser, or an inadvertent or mistaken trespnsser. Under the facts stated in the bill of exceptions, if Carroll was a willful trespasser, then the plaintiff was entitled to recover at the rate of $5.25 per 1,000 feet, being the price paid by the defendant. If Carroll was a mistaken or inadvertent trespasser, then the plaintiff was entitled to recover the value of the timber at the time of conversion byCarroll. which conver::;iol1 was, according to the facts stated in the bill of exceptions, after the timber was severed from the realty and when the logs were lying on the ground where cut. The record is silent as towhether there 'ivas any evidence showing or tending to show that Carroll was a willful trespasser. Without knowledge of this fact, this court cannot say that there was error to the prejudice of the plaintiff in either the charge given or the one refused. The bill ought to have stated the fact or the evidence tending to show the fact. "An appellate court will not look outside a bill of exceptions to determine the correctness of the instruction excepted to." Dunlop v. Munroe,7 Cranch, 270; Railroad Co. v. Hanning, 15 Wall. 655; Bankv. Kennedy, 17 Wall. 29. In Worthington v. Mason, 101 U. S. 149, Mr. Justice MILLER, speaking for the supreme court, says: ..As we understand the principles on which judgments here are reviewed by writ of error, that error must appear by some ruling on the pleadings or on a state of facts presented to this court. Those facts, apart frOID the pleadings, can only be shown here by a special verdict, an agreed statement duly signed and submitted In the court below, or by bill of exceptions. When, in the latter, complaint is made of the instructions of the court given or refused. it must be accompanied by a distinct statement of testimony given or offered which raises the question to which the instructions apply. The proof of the facts which make the charge erroneous must be distinctly set forth, or it must appear that evidence was given tending to prove them." See, also, U. S. v. Morgan, 11 How. 154; Reed v. Gardner, 17 Wall. 409; Jones v. Buckell, 104 U. S. 554; Insurance Co. v. Raddin. 120 U. S. 183, 7 Sup. Ct. Rep. 500; Railroad Co. v. Madison, 123 U. S. 524, 8 .sup. Ct. Rep. 246. Upon the record, as it comes to this court, there appears no error; and, accordingly, it is ordered, adjudged, and decreed that the judg(Ilent of the district court be, and the same is hereby, affirmed.
UNITED STATES t1. STEVENS
(1JtBtrict OOUrt, D. Minnesota. November 5,1890.)
CONSPBACY-VIOLATING CENSUS LAWS.
Persons who conspire to commit tM acts made misdemeanors by sectlon 18 of the census act, (Act U. S. March 1,1889,) with another person who is capable of committing tlle offense defined therein, may be punished under Rev. St. U. S. § 5440, whicll provides that if two or more persons conspire to commit an offense against the United States, and one or more do any act to effect that object, all shall be liable to a penalty, though they themselves are incapable of committing tbeoffeDses defined in section 13. In an indictment for conspiring with a census enumerator to insert a certain number (If false and fictitious names in the census schedules, it' is sufficient to state a few only of the names alleged to have been so wrongfully inserted by the enumerator, as certainty to a common intent is all that is required in an indictment for conspiracy.
At Law. Demurrer to indictments. This indictment charges the defendants as follows:
" District of Minnesota-ss. : "The grand jury of the United States of America, wltbin and for said district, ontheir oath present that heretofore, to-wit, on the second day of .June, in Lhe year of our Lord one thousand eight hundred and ninety, at the city of Minneapolis, in this district, Ed ward A.. Stevens, Thaddeus S. Dickey, Louis E. Strum, and other persons to the grand jurors aforesaid unknown, meditated and devised a scheme to procure false, exagKerated, and fictitious schedules and returns of the population of said city on the first day of June, in the year of our L9rd one thousand eight hundred and ninety, to be made and forwarded the superVisor of the second census district of Minnesota by the several enumerators employed, and to be employed, to take the eleventh census of the United States within said city. '£haton said second day of June one Rlward J.Davenport was one of the supervisors of census, to-wit. the supervisor of census within and for the second superVisor's district of Minnesota, duly appointed, qualified, and acting as such. under and pursuant to the proVisions of an act of congress of the United States, to-wit, an act entitled 'An act to prOVide for taking the eleventh and SUbsequent censuses,' approved March first, A. D. one thousand eight hundred· and eighty-nine, and one Louis E. Strum was an enumerator duly employed, appointed, and qualified. and acting as such, under and pursuant to the prOVisions of said act, within. and for a certain subdivision of and within said census district, to-wit, subdivision numb!'r 367; he, the said Louis E. Strum, lately before then, to-wit, on said second day of June, having taken and subscribed the oath required by [section eight of] said act. . "That the said Louis E. Strum on said second day of June had in his custody and possession, as such enumerator, divers, to-wit, three hundred, blank schedules of the form approved by the secretary of the interior to be filled in the course of the enumeration to be by him made, according to the provis,ions of said act, and being the same blank schedules that had been issued, pursuant to. the provisions of s/lid act, from the census office, and to him, the said Louis E. Strum, before then, lately, to-wit, on said second day of June, transmitted and delivered by said supervisor of census. " And the jurors aforesaid, upon their oath aforesaid, do further present that afterwards, to-wit, on the said second day of June, in the year of our Lord