UNITED sTA'1ES V.THOMPSON.
331
Section 1990 abolishes peonage in New Mexico, and in every state and territory where it had a foot-hold. On March 3, 1871, congress passed a law absolutely· forbidding anyfi.Iture treaties with Indian tribes, or the recognition of tribal independence. See section 2079, Rev. St. And by an act approved March 3, 1885, (23 U. S. St. at Large, 385,) congress made all Indians amenable to the criminal laws of the United States, and subject to the jurisdiction of its courts for all offenses designated in said act, committed against the person or property of any other Indian, or any other person. The last act of congress referred to materially strengthens the view herein express!ld, that the Indians of Alaska are under the control of, and subject to the laws of, the United States. The petitioner testifies that he was captured and sold into slavery when a mere boy; that his labor from that time to this has been appropriated by others. He has lost one eye, his ears are badly mutilated, and he is certainly a sad spectacle of humiliated manhood. The crack of the lash, the torture of mutilation, the fear of death, the annoyance of the juggler, the excess of manuallabor imposed upon him, the extreme hardships of his life, with the sense of degradation and inferiority constantly before him, have subdued his manhood, and the pitiable spectacle of his once stately form is an evidence of the blighting curse of slavery. This case has been ably argued on both sides, and all the learning accessible to the attorneys has but I can arrive at no other conclusion than that been brought to the petitioner must be released from the merciless restraint imposed upon him, and go forth a, free man, and such is the order of the court.
UNITED STATES tI. THOMPSON.
(Oircuit Oourt. D. OregOn. June 27, 188.7.)
1.
ACCOMPLICE-WHO IS-SUBORNATlON OF PERJURY.
The person solicited to commit perjury is not an accomplice in the crime of subornation committed by the person who suborned him; and the fact that .he committed the perjury does not prevent the jury from convicting the suborner of the solicitation on his testImony.
Thedefendant was indicted for procuring S. to commit perjury in taking an oath in support of an application for land under the timber-culture act, and it was alleged in the indictment that the defendant knew that S. did not make the application for his own use and benefit·, but for that of the defendant, and did not intend to cultivate the land, or anywise comply with said act. Held, that .such allegation wss. the legal equivalent of the allegation that the defendant knew that S. would and did swear willfully false .in taking said oath, and would and did thereby commit perjury, at least on a motion in arrest of judgment, after a verdict of guilty. . (Syllabus by theOourt.l .
2.
SUBORNATION OF PERJURy-INDICTMENT.
Indictment for Subornation of PeIjury.
Lewi8 L. McArthur, for the United States.
332
,BPERAL REPORTEB.
W.D. Fenton, for defendant. DEADY, J. Section 5392 of the Revised Statutes defines the crime of perjury as a willful statement, made by a person duly sworn to tell the truth of any material matter, which he does not believe; and the following one (5393) enacts: "Every person who procures another to commit any perjury is guilty of subornation of perjury, and punishable as in, the preceding section prescribed." On April 5th the defendant was indicted and on May 26th convicted of the lAtter crime, and nciw moves for a new trial and in arrest of judgment. Briefly, the indictment states that on August 26,1886, the fendant solicited one David J. Shepered to make an application under the timber-culture act of June 14, 1878, (20 St. 113,) for that portion of the public lands designated on the survey thereof as the N. E. t of section 2, in township 1 N., of range 20 E. of the Wallamet meridian, situate in The Dalles land district, state of Oregon, and to subscribe and swear to the affidavit required by law in making said application, which saidShepered then and there consented to do; that on August 27th said Shepered, in consequence of said solicitation, did make said timber-culture application at the proper land-office, and subscribe and swear to the affidavit required .by law, in which he stated, among other things, that "this filing and entry is made for the cultivation of timber, and for my own exclusive use and benefit; that I have Ibade this application in good faith, and not for the purpose of speculation, or directly or indirectly for the use or benefit of any other person or persons soever; that I intend to hold and cultivate the land, and to fully comply with the provisions of this said act;" whereas, in truth and in fact, the said Shepered, as he then and there well knew, did not make said application in good faith, nor for his own exclusive use and benefit, but for that of the defendant, and did not intend to hold and cultivate said land, or comply with the provisions of the timber-culture act; and whereas, in truth and in fact, the defendant, when he solicited said Shepered to falsely swear as aforesaid, and when he did so falsely swear, well knew. that said Shepered did not. make said application in good faith, nor for ,his own exclusive use and benefit, but for that of the defendant; and did not intend to hold and cultivate said land, or comply with any of the provisions ofthetimber-culture act; and so the defendant did, inlllanner and formaforesaid, suborn and procure said Shepered to commit perjury, contrary to the statute, etc. The motion for a new trial is based on the following grounds: (1) That Shepered is an accomplice and perjurer, and the only witness to the facts necessary to a conviction; and (2) that the evidence in the case tends to show that Shepered did not commit perjury in making the affidavit in question, because he believed that the statements therein were true; and in arrest of judgment on the following: The indictment does not state facts sufficient to constitute a crime, in this: it does not allege that the defendant knew that Shepered' knew that the matter contained in sl'dd affidavit was false. .
UNrJ:Il'D, STATES"'; mOMPSON.
The first point is not well taken. Shepered is not technieally an complice in the crime charged against the defendant; and, if he is, the jury had the power to find the defendant guilty on his uncorroborated testimony. The credibility of his witness belongs to the jury. Whart. Crim. Ev. § 441. But, on the statement of the witness, he has onC6 been guilty of perjury, and that circumstance was proper to be considered by the jury in weighing the evidence; and so they were instructed. But it is claimed by counsel that this fact brings him within the maxim, fa18us in uno, falsu8in omnibus, in support of'which Peaple v. Evans,.40 N. Y. 5, is cited. I think this maxim has no application to any false.. hood spoken by the witness on any other occasion than the one in which his evidence is being considered by the jury. Nor do I think that the weight of modern judicial opinion or legislation favors the doctrine that a false statement presently made by a witness shall have any other or greater effect than to cause' him to be distrusted. generally, leaving the jury, under proper instructions, to judge of his credibility, and give. such weight. to his evidence as they think it entitJed to. The rule is so expressed in the Code of Civil Procedure, § 835"sttb. 3: "A witness false in one part of his testimony is to be distrusted in others." Itwould be monstrous, as it seems to me, if a falsehood told by a person years before he is called as a witnessin a particular case could be invoked to ah.. solute1y discredit him on the latter occasion. Therefore if, all the circumstances considered, the jury are satisfied, beyond a reasonable doubt, of the guilt of the accused, from the evidence of an uncorroborated ;accomplice, or that of a witness who has committed the perjury which he is charged with procuring, they may and ought so to find, and the court may not on.. that account interfere with the verdict. B.ut Sheperedwa,s corroborated at almost every point in his testimony, and particularly by the defendant himself. From the testimony of Shepered it appears that he is a young man without any special calling, whose home is at Salem.. In the summer of 1886 he was living from hand to mouth, knocking about in eastem Oregon, working occasionally as a sheep-herder and hostler. On his way home, while passing through The Dalles, he testifies that the defendant came to the tavern where he was stopJ>ing, and accosted him without an introdue- . tion, asking where he was from, and, on recJiving an answer, said he had seen some land that he wanted; that he wanted to get seven or eight persons to enter it, and give him a power of attomey to conttol iti that there was a party coming out from the east in six months,. and., he wanted to get control of the land so they could hold it in the name· of the persons who entered it; and that there was nothing wrong about it. The witness having consented, he says he went to the defendant's room the next day, where he signed a paper which he understood to be the power of attomey sugg6J3ted, and afterwards went to the land-office in The Dalles, in charge of a third person, to whom the defendant gave $14 to pay the expenses of the entry, which was handed to the witness at the land-office, where he .made the application .and affidavit in question, and Pllid said expellses. Of the SUUl. oU14,SheperedJ:etainedll, and
334 gave the land-office :receipt forreJ,nainder to the defendant, who then gave him another dollar for himself. Shepered also testified that when defendant 'sent the man to the land.office with him he said he had been there so often himself he did not "'ant to go again; that he (Shepered) did not intend to cultivate the land, and that he took it for the defendant, which· the latter well knew. This transaction took place on August 26 and 27, 1886. The register of the land-office testified that the defendant was at the office frequently during thb ten days or two weeks just prior to the time this application was made, inquiring for vacant prairie lands, and that on his request be was furnished with some plats of the public lands for examination; that on August 26, 1886, he brought a man named Ryan to the land-office, and gave him $14 to make a timber-culture entry with, which he did; and that Shepered mad.e the applicatIon in question, and affidavit in support thereof,. on August 27th; in company with another person llotthe defendant.'The defendant testified tbathl'f came to Oregon from Illinois in July, 1886, and: stopped at The Dalles, where he had a brother, who is a locomotive engineer; that he was raised on afarm, and had worked at the printing trade, and kept school. Resays he met Shepered and others at The; Dalles; and talked with them about taking land; that he got three pieces from the land-office, and got Shepered and Ryan to enter two of them, he paying expense, and giving them two dollars apiece; that they first signed a paper,by which he Was to take care of and control the land, and they were to pay him his advances for entry and subsequent CUltivation under the timber-cnlturea·ct, with 10 per centum interest; that he knew the nature ofthe;oath that Shepered must and did take in support of the applicaticm, and that he told him thElre was nothing wrong about it. These parties........the defendant, Bhepered,and Ryan-were sOOn after arrested on a charge of conspimoy to defraud the United States out of the land included in under section 5440 of the Revised Statutes, for which they were sUiosequentlyindicted. .Demurrers being sustained to the indictment, (ll.S.:"", Thorrvpson, 29 Fed. Rep. 86,89,) they were held to bail, arid 'the defendant \Vas'subs0quentlyindicted for subornation of perjury in procuring both Shepered and Ryan to make theileentries; Ryl;tn has since escaped from jail. On the witness stand, the defendant, being asked oll':cross-examination to produce the writing 'between himself and Shepered and Ryan, answered that, when they were arrested at The Dalle'll; Ryan'said "he thought the agreement Was notlegal, and I put it in the stove.'" :He also admitted that he had no means, and that the' moneYl1secHn making these entries he took out of his brother's trunk during the latter's absence. . :. As to second 'ground of the motion, but little need· be said. The question involved in it was one of [not for the jury,and they have found that Shepered did commit perjury·. It is true that Shepered was made ,to say',on he "did not think he swore falsely" when: hEltook the oath, because the defendant told him "it was
UNITED STATES "'. THOMPSON.
835
But this kind ofa ought to have no weight against his specific statements on the examination in chief that he did not intend to vate the land, that he did not take it for his own use and benefit,btlt for that of the defendant;' Added to these are the facts admitted by both the defendant and Shepeted, thattheilatter made the application at the solicitation and with the money oftheformer,after executing a writing which there is every reason to believe gs.ve him the Hghtto control and use the land as' his own, 11S' far as the 'law would allow, or it could be evaded. ' On the evidence of Shepered, whichis corrobOl:ated by that ofthe defendant at every turn; it is. dear that theformef committed, perjury; that is, he made it material statement in the affidavit that he subscribed which Mdid not believe and; mote, which heeould not believe, ahd which he ndw testifies he did not beiieve, and was not true. , f And the defendant 1 who knew Shepereddidnotintend toc\iltivate the land,' or take it for his own use Of ,benefit, andwhd hadprocored him to take' it for his. benefit, well knew that Shepered would and did' commit perjury in taking that oath. Iildeed;the very. fact of thespolilttion or destrucHonby the defendant, as' soon aS'he was arrested, afthe private wtiting givenh:im by SheperedandRyan, betNlys a guilty knowledge ofan unlawf'lli. act on his part,' and stamps the transaotion to which it related as , lri's.uppott of the motion in arrest ofjudgment, (}ounsel cites U. S. v. Eva,nB,19 Fed. Rep. 912: U. S. v. Dennee,3 Woods, 39; and Com.' v. Douglass, 5 Mete. 244. The forrner two cases appear to have been deCided on .the authority of the latter. But that case, while it holds that subornation of perjury is not committed when it does not appear that the party procuring the witness to 'mlLke the falscstatements must have known or'believed that they were willfully false as well as false in fact, it is silenton the subject of what averrp,ents are necessary in thEnndictment.. The court says that "ilhe [the defendant] did 'not know or believethat the witness intended to coriimit the crime of perjury he could not be guilty of the crime of suborning her." 'On the evidence. iil this ca'le, the. defendant must have known that Shepered was gbing to comnlitthe crime of perjury in pursuance of his solicitation, and the only question is, are the allegations of the indictment sufficient to support the verdict? . . It is alleged in the indictment that'both the defendant and Shepered knew the' oath of the latter would be and Was false in fact, but Wis not alleged in so many words that thedefendarit knew or believed that Shepeted willfully took the oath knowing it to be false, andthel'eby com,perjury. In Com. 'v,, Douglass, i!UpTa, the allegation in the indiot,. ment; which the facts proven were held insufficient.to sustain, is incidentallf stated in th,s language: "The defendant suborned the said Fanny'Crossmantocommit perjury." . Iumy judgment, this charge OOvet8 the whole grourtd/ andbyanecessaryimplication includes aU the efemehtsof the crime of sUbornationofperjury.Itmay be defectiVe, on demurrer,' for not stating: the' circumstances of the' subornation iri detail,
illegal.
,
"
'
. FEDERAL REPORTER.
including the fact that the defendant knew or helieved that the person solicited ",ould willfully swear false, as alleged, so that he might be of the nature and cause of the accusation against" him. But an allegation that A. procured B. to commit perjury by willfully that A. paid C. $100 on a certain occasion, which statement neither A. nor B. believed to be true, is comprehensive enough to admit,on the trial, the proof of all the details constituting the crime of subornation of perjury, and is therefore good after verdict. And the evidence necessary to support the indictment in such case would include proof. of thl} fact that A.knew or' believed that the person solioited willfully swear falsely. But the indictment in this case would .and goes further than this. ]'91' it is distinctly alleged that the defendant, ",hen he "olicited Shepered to. take this false oath, and also when he did inke knew that .he did I).pt make the application in good faith, nor for his own exclusive use ap,<,lbenefit, but for that of the defendant, and did not to ,the land, or comply with any ofthe provis. ions of the, timber:eulture act.. Nor, ifJhedefendant had this knowledge, orany particular of it, concerning the real purpose and intent ofShepered when 'he consented to and, did take this oath, }:le not only had reason to believe but knew that in taking it he committe<l perjury.: This allegation is the legal equivalent of the statement that counsel for the defendant insists should be in .the indictment. .The defendant. knew that Shepered knew that the matter cpQ.t::tined. in the affidavit is false. But, assuming that there is no allegation in the indictment, the omission complained of is merely a defect in the statement ofa material averment, which the court cannot fail to see must have been fully proven on the trial, or the verdict of guilty could not have been found, and therefore there is no cause for the arrest of judgment. Whart. Crim. PI. & Pl'. § 760a. On the argument a neW trial was also asked on the ground of further evidence contained in an affidavit then filed of one of the counsel for the defendant,. who says that on' account of a prior engagement he was not able to be present at the trial, concerning a conversation or conversations he had with Shepered on the subject of this oath. They are to the effect that he did not commit perjury in taking the oath, and that' he made the application in good faith. With the consent of the district attorney, the affidavit was submitted with the motion for new trial. This evidence is not newly discovered. It was known before the trial. But, waiving that, it is not calculated to change the result. It consists oOwo general conclusions, stated by the witness probably in answer to interrogn,fories that suggested them,-the one that he did not commit perjury; ;the other, which is included in th13 first, that he acted in good faith., They are both utterly inconsistent with and contradicted by the specific fa,ctfil -testified to by him concerning his purpose and intent in making the APplication and taking the oath. The undoubted circumstances of the· transaction, show, beyond the power of contradiction, that he,did commit that he swore to what he did not believe and ,w.<l not.iQtend to perform. But the defendant had the benefit of this
UNITE!> ill.'ATEa' V. BOGGS.
837
statement on' the trial. For, as has been said on the cross-examination, Shepered was induced to say that "he did not think he swore falsely" because the defendant said "it was all right." But, on the facts admitted by him, the jury were of a different opinion; and the question was for them to decide, and not Shepered. As well might the famous burglar, Jack Sheppard, excuse himself for house-breaking, on the plea that he did not think it was burglary because the receiver of the stolen goods said "it was all right." , , The 'motion is' denied, and the defendant is directed to appearfor sentence.
UNITE!> STATES V. BOGGS.
(Di8iNet (Jourt, 8. D. lllinoUt. June Term, 1887.)
1. B.
PERJURy-AFFIDAVIT TO SUPPORT PENSION CI,AIM.
Theofl'ehSeof perjury, as defined by section 5892, Rev. St. U. S., may be 'predicated,upon an affidavit to support a pension claim sworn to before a Ju&tice'of the peace. Regulations of the commissioner of pensions prescribed that" all evidence in a claim for pension (other than the declaration) may be verified before an ofllcer duly' authorized to administer oaths for general purposes. " Held, that a jnstice of the peace is an officer duly authorized to administer oaths, within the purView of said regUlations. ' Such regulations are proper, under section, 4748, Rev. St. U. S.,directing the commissioner of pensions to furnish claimants or ap{llicants with "all such printed instructions and forms as may be necessary In establishing andobtaining Said claim." An allegation in an indictment under section 5392, Rev. St. U. S., charging perjnry in an affidavit to support a pension taken before a justice of the peace, sufficiently avers, under section 5896. Rev. St. U. S., the official character of the officer taking the afJidavit, by alleging that said officer "was then Rnd there a person having competent authority to administer said oath." The officer's special authority need not be set forth.
PBN8IONS-REGULATIOl'l8 OF COMMISSIONER-AFFIDAVIT.
8. SAllE.
4.
PERJURy-INDICTMENT-SUFFICIENCY.
Indictment for Perjury. Motion in arrest of judgment. G. Van Hoorebeke, for the United States. John M. Palmer, for defendant. ALLEN, J. The defendant, at the June term, 1886, was indicted under section 5392, Rev. St. U. S., which provides that "every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, or certificate by him subscribed is true, willfully, and contrary to such oath,states or subscribes any material matter which he does! not believe to be true, is guilty of perjury." A trial was had at the last January term of this court, when the jury v.31F.no.6-22