lion of original contents had leaked out or had evaporated. If the l1eduction in proof was due to the addi,tion of water, the penalty sued forw8&,not incurred, since no wrong was thereby done to theg9vern. manto " The penalty is imposed for the doing of some act whereby the ,government is or may be defrauded. 'IJhree Packages of Distilled Spi?·· its, 14 Fed. Rep. 569. See, also, U. S. v:.Thirty-Two Barrels of DistiUed Spirits, 0 Fed: Rep. 188. ' The second series of counts ,will be quashed. The demurJ::er 'motionto quash the first will, be overruled.
U1n:TED ,STATES ".STONE.
January, 4, 1899.)
"Orlm1nal pl'OCedure may be ml\iutained n,nder septlon2461. It!!V. St. U,
s. Soo;" "
S., for & pf:its provislo1l,s;c !,Ind \t ,8uftlcient to allege in that the o\1ttlllg'aildremoving of 'the tlmbel' was for use other than tllsi of the navy of the Ubtted States; :It is not necessary t<> allege that defendailt was not justified under any, ,qf ttie varlQusland laWIl of United States. "
,,',. , . '
Ohargingthe "outting and removing" of timber does nOli 'constitute the, allegation, pftwo offenses t9 one count" " . ' (SyZl.abJtB 1YJJ the Oourt.) , , ,
Ai Law., I>emurrer toi"diCtmen't. .I+emont Woqd, U. S. , McBr4le& Allen, A,lbert 1Iagan, and L. Vineyard, for'defendant. ,District Judge.' .l3y\he in ,pursuanye of the pro-. visionsofsection St., the defendant ia charged in this. case with the cutting and removing of timber from the pJlblic lands of the UnitedState&,' with the intent ,to export, dispose of, and, use the same iu:8. Itlannel' "other f9r the.1;Ise of the navy of the United States." Intheargunlent and consideration of the demurrerinterposed by defendant to such,Jndictment, the defendant, in supporttpereof, claimedFirst, that, i under said section, a criminal prosecut1.9n cannot be mainpublic lands of the United tained fot,titrlber tresI»Jsses on,the States; aecond, that the indictment does not set out tbe use to which defendant appropriated the tin;lber, and fails to show he does not come section, or, within ',the prolfisions of some of the statutes modifying in otherwords,that it has not negatived the defendallt's defenses; and, third, that the indictment, in 'charging the cutting and removing of such timber, has charged two offenses in onewunt. 1. The first qkjection, I think, may be Clearly determined by an analysis of thesecti0lli involved,witbout aqonsideration ·of the adjudicated cases. Thetirllt claul3e of this section is limited to the cutting or wanton
STATES tI. STONB.
destruction of any timberon any lands of the United States "reserved or purchased for the use of the United States for stl,pplying or furnishing therefrom timber for the navy of the United States." The second clause refers alone to the removal of such timber from such lands reserved for such naval use, but the third clause provides against the cutting or removing of live oak; red cedar, or other timber from any other lands of the United States, with intent to export, dispose of, or use the Samf' for any other purpose than the use of the navy, and the fourth and last climse provides the for a violation df the provisions of the section, which includes both fine and imprisonment. The first two clauses apply alone to the cutting, deStruction, or removal of any timber; only on those lands reserved for naval use, while the third clause is to prevent the cutting or removal of timber from lands of the govermnent. What other. lands are referred to? The 'phrase" any other Ia:nds" is.easily construed, when considered in connection with what precede!dt.' The lands before named were thbse set apart' for Daval use, and it can only mean an other lmids which the govenlment owns than those 'so 'reserved for naval use. and such as may be elsewhere otherwise excepted., It seemsJindisputable that it was designed 'by this statute to prevent the CUtting and removal of timber from such lands as are referred to in this indictment, ·which are not those reserved for naval use, but those belonging to that class of public lands which are open to settlimlehtundersome of the g'eneralland laws of the United States. While the, defendaJ,lt does not. positively controvert this conclusion, he insistS that the provi!?ions.of the sectioJ,lcannot be enforced by: (,)riminal procedto section 6888 as the one apure. In support of this view ! he' plied to criminal procedure; that such procedure is invoked only in trespasses on' lands reserved for some special purpose; and that the lands here trespassed upon donqt belong to any such reserved class. To this it'must be answered that the provisions of the last section are ,an exception only to those of the bther section, and for an entirely different and independent purpose. They are intended to prevent the cutting and wanton destruction of timber on, and not its removal from, lands reserved for m.ilitary or other purposes; the phrase "other purposes to bA construed to' be for some purpose similar to a military use. The two sections together provide against the wanton destruction of timber on landsreserved·for the use of the navy and military and like purposes, and the last section does not refer to the general class of lands defined in the third clause of section 2461. But the fourth clause of section 2461, in providing a penalty of fine and imprisonment for a violation of its provisions, fully negatives the defendant's claim that a criminal procedufecannot be maintained thereunder. Such penalty applies only to a criminal action. This question is further put at rest by the provisin. certain cases from ions of section 5, p. 90, 20 St., which prosecution under this sE'ction. . In U. S. v. Scott, 89 Fed. Rep. 900, it was held by the late circuit judge ofthis that a compliance with the provisi9IlS of this last statute relieved the party only from a criminal prosecution, under section 2461, and n.otfrom the civil action for the v.49E.no.1O-54
'I14tl i.rPq"t amI is, :l;bat, ,l!-, be ,of the 2461 ,,:aQ4r while there some i dillagreenwnt ampng JhQ-' adjudi,weight sustains this conqlusion. bearqU6!ltiQnare,pited S. v. JJriggs,.9, How, 3,54jU,$. y. 22j:Q",H,y, 4?, F.ed.Rep.64; U. ,So :Rep. S. :V:. Nels(Yfl" 68. .' , to this indiptment is mU,atbeCl>ncedeq 00014 seldom successfully prosecute AllY #ffiber for it wop14 nQt have to tha,t. the fljlnW,l.qt of a,niY of the va-: rious laPd:laws, have ,to prove a'll such negative allegations. ,be foUo:\V,ed, only iI), ;pursuance of ,c)ea,r· statutory well-conside!.ed judicial .. It istnw that, a sometim\'l/J be pleaded, but it i, 9111y in those cas.es: '\,V.here,tPe is so framed as to constitute the t() perform some speqific an. element of ,t4e. pfl'ense. On thecqntrory, it a general .when there is pr 000.4itiop to an offense, if such proc<institute. all of the.o,I;l'ense it neeq.. not1>e referred viso to int4e. indictment·. In U. S. v.GVok, 17WaJl. 173, it ,is said: "Whlli!'IM\ statute ,lJ,etlJ'ling an oft'Mf$e cont"ins an exceptlop,. in the enacting of t,he sta,tql,e; .Wlllch is so incorporated with the langulllte defining th, offense the of thl:) oft'ense qannot be clearly described 'if the exception Is omitted. the rules of good' pleading reqUire that an upon the s",tute mO'lt aUege enough to show that the accused: hnJbtwithin the exception. but,if the languHgeof'lihesecti<ln defining tbe: olfenseis so entirely separabl1l frb'mi the exception that the ingredients offen_slmay be. accuratl'ly clearly without any re1erefJce tqtbe, pleader maylw,,(eb" omit anY,such l'l'ference. in the exception is matter of defense, 811d must be shown by the.licensed."" ,. .' ' . '. ' ',' ' ;See"Alap, v. Coole, 36 Fed. is not complAinipg tp,atsome condition ,or exception in and a part oftllestat· offensei,somitted, but ,that it dOll8pot allege and shpw. fllat has, not appropriated thetim;ber by virtue of any laws granting sUQh right., In U. $. v. Murphy, 32 Fed., ,Rep'r;37s', the court says the onus upon the fendant t9 !:lqO\V, a defanse, ,based uponsQme exceptiQnto the law, and further qg 3:84} it is said: sectio!! 2461. whoevel,' crt!! removps tlmpel," froplpu1;l1¥: llm!l8., which includes all that thE;lgovernment to. must be prepare4 wh4;ln indicted or sued as a trespasser, lawful author' , ' . ityfol'
" , ':
" '._ :'
that,. dafe,nse; from liabili"ty! These must lead to, Hages whA94 defefl4aIftmay have 9rirninal,.t4e
actlops either civil ,or such use of the timber '" . ., any rights or the timber in ques;
UNr,rR,D. STATES fl. LYNCH.
tiQn are simply matters in defense, .whichhemust plead, and which the government,oouldomit in the indictmellt. . 3. of the "cutting timber under this statementoftwo offenses in one count, has been held in statute, another 4nthis court, and I do not see any good reason to now change that view. While in 9 How. 354, and 32 Feq. Rep. 376, I!Upra, the question was not directly raised, the indictments were for the cutting and of timber; and in U. S. v. Fero, 18 Fed. Rep. 901, with a somewhat similar statute under consideration, the ab<?ve view was sustained. The demurrer is therefore overruled.
UNITEl) STATES ". LYNCH
(Di8trict Cotm, B. D. CtLlifomia. March 10, 1899.)
UnderAct Congo Sept. 111, 1800, making it a mIsdemeanor to deposit tn tbe mall any newspaper containing the advertisement of a lottery, an Indictment charging, in the languaie pf the act" that defendant COmmitted the offense by depositing such newspaper in the maij, etc., and setting forth the name and address of the person to whom it was sent, is sufllcient without. alleging prepayment of postage thereon. '
At JAW. Indictment against Joseph D. Lynch al1 d Jaml's J. Ayers for mailing l()tteryadvertisementB. :Demurrer to the inpictwent. OVt:rruled. M.T. Allen, U. S. Atty. A. B. Hotchb4Js and .lay E. Huntei', for defendants. ;Before Ross,District Judge. Ross, DistrictJudge. The statute on wbich J18se is, among otht:r things, tllatindictment in this
'''No letter, postal-card,ortircular any lottery. and no Jist of the draWings at any'foltery, * * * sluilfbe eanied in 'the mail, or dt'livered at or throngh any post-office o,r branch thereof. or uy any h·ttercarrier; nor shaH any newspaRer. * * ... contai any advertlseml'nt of any Jotter)-, * * * or containing any list of prizes awarded at the drawings of an)' such lottery. * * * whtlther said list IS of any part or of all of the drawing. be carritld in the mail or delivered by any pORtm'lsler or letter-carrier. Any pt'J't;on who shall knowingly deposit or cause to be depusited * · * anything to be conveyed or utllivt'red by mail ill \iolatioll of this section':. * shall be deelUed guilty of a mistlemellnor," etc.
It is quite obvious, from this that any, person who shill! knowingly deposit- or cause to be deposited in a United' States post-office, M'!' pe by mail, any newspaper conta1l'1ing any list bi'prizes awarded at the drawing of any such lottery I whether the list is is guilty of the6ffense d'enounced of any part or of all of the by the statute. of the