Hallock v. United States

HOOK, Circuit Judge. D. H. Hallock was convicted of suborning two young women residing in Kansas to commit perjury in making their final proofs in the commutation of their homestead entries on public lands in Oklahoma as charged in the fourth and fifth counts in the indictment. Seventy-nine assignments of error are relied on, but only those will be discussed which appear to merit it. They relate to five subjects: (1) The jurisdiction of the trial court; (2) the sufficiency of the indictment and the grand jury which found it; (3) the limiting of peremptory challenges of petit jurors; (4) the evidence; (5) the instructions. The offenses were committed in Woodward county, territory of Oklahoma. The indictment was not found nor the trial had until after that territory and the Indian Territory were admitted as the state of Oklahoma. The organic act of the territory of Oklahoma in force when the offenses were committed required their prosecution and trial in Woodward county. The District' Court of the United States in which the accused was indicted and tried did not sit in Woodward county. Upon this it is contended that the accused could not lawfully be tried outside that county; that the enabling act (Act June — 419 — 16, 1906, c. 3335, § 14, 34 Stat. 275 [U. S. Comp. St. Supp. 1909, p. 155] Act March 4, 1907, c. 2911, 34 Stat. 1286) providing otherwise is ex post facto; and, also, that the act last mentioned gave the court jurisdiction only of sucli cases for prior offenses as were pending at the change to statehood. These contentions are answered by Billingsley v. United States, 101 C. C. A. 465, 178 Fed. 653; Pickett v. United States, 216 U. S. 456, 30 Sup. Ct. 265, 54 L. Ed. 566; Gut v. State, 9 Wall. 35, 19 L. Ed. 573. As to the sufficiency of the indictment: The perjury of which the accused was charged with sub 'ruing was that of the two entrywomen regarding their settlement, residence, and cultivation of the lands. It is claimed that section 2291, Rev. Stat. (U. S. Comp. St. 1901, p. 1390), relating to homestead entries, governs the kind and character of proof on the commutation of such entries, and, as it merely calls for an affidavit of nonalienation by the entryman and proof of residence and cultivation by “two credible witnesses,” the personal testimony of the entrywomen upon the subjects mentioned was not required by law, was purely voluntary, and not the subject of perjury. We do not think the section relating to homestead entries is applicable. Section 2301, Rev. Stat. (page 1406), provided that the proof of settlement and cultivation in commutation cases should be as in preemptions, and as to pre-emptions section 2263 provided that proof of settlement and improvement should “'be made to the satisfaction of the register and receiver of the land district in which such lands lie, agreeably to such rules as may be prescribed by the Secretary of the Interior.” A regulation of the department under that law prescribed that the final proof of pre-emptors upon those matters should consist of the testimony of 1he claimant corroborated by that of at least-two witnesses. Were this all, it would be plain that the two homestead entrywomen desiring to commute their homestead entries to cash entries were proper witnesses to testify upon the subjects in question. But in 1891 the above-mentioned section 2301 relating to commutations was amended. ,Act March 3, 1891, c. 561, § 6, 26 Stat. 1098 (U. S. Comp. St. 1901, p. 1406). Formerly the right to commute could be exercised any time before the expiration of five years from the date of the homestead entry. The amendment provided that it could be exercised any time after 14 calendar mouths from the date of entry and “upon making proof of settlement and of residence and cultivation for such peiiod of fourteen months.” It-will be observed that specific reference to the pre-emption law for the kind of proof was omitted from the amendatory act of 1891. Because of this counsel for the accused contend that the homestead law (section 2291, Rev. Stat.) applies, but we think the reason for the omission was probably because the pre-emption law was repealed by the same act that amended the commutation law. Act March 3, 1891, c. 561, §§ 4, 6, 26 Stat. 1097, 1098 (U. S. Comp. St. 1901, pp. 1381, 1406). We can find no indication of a purpose to adopt the particular method of making proof required in homestead cases. The law says an entry may be commuted “upon making proof of settlement and of residence and cultivation.” No provision appearing in the law the matter of witnesses to make the proof would properly be the subject of a de — 420 — partmental regulation, and, in the absence of one, the officials of the Land Office would be fully justified in following the practice that formerly obtained. An entryman would appear to be a competent witness of his own settlement, residence, and cultivation, and his false testimony respecting the same the subject of perjury. A statute of Oklahoma Territory in force when the offenses were committed required a grand jury to'be composed of not less than 12 nor more than 16 members and the concurrence of at least 12 in the finding of an indictment. The act of Congress applying to the federal procedure in the states fixes the number at not less than 16 nor more than 23, and requires a like concurrence for an indictment. The grand jury which indicted the accused was drawn and impaneled under the act of Congress after the admission of Oklahoma as a state, and was of 19 members. It is claimed the act' of Congress as to offenses committed before statehood is ex post facto, and the constitutional rights of the accused were therefore violated. Various tests have been given for determining whether a statute is ex post facto as applied to. an act committed prior to its passage. Does it make criminal that which was innocent, or aggravate the crime, or change and make the punishment greatei-, or alter the legal rules of evidence and lessen the amount or measure necessary to convict? Mallett v. North Carolina, 181 U. S. 589, 21 Sup. Ct. 730, 45 L. Ed. 1015. Does it “take from an accused any right that was regarded, at the time of the adoption of the Constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him” ? Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061. In its relation to the offense or its consequences does it alter the situation of a party to his disadvantage? United States v. Hall, 2 Wash. (C. C.) 366, Fed. Cas. No. 15,285; Kring v. Missouri, 107 U. S. 221, 228, 2 Sup. Ct. 443, 27 L. Ed. 506. But as was held in Gibson v. Mississippi, 162 U. S. 565, 590, 16 Sup. Ct. 904, 40 L. Ed. 1075, the inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried in all respects by the law in force when the crime charged was committed. Tire mode of trial is always under legislative control, subject only to the condition that the Legislature may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person aginst ex post facto enactments. For example, the constitutional prohibition against ex post facto laws has been held not to apply to state laws which authorize an appeal by the state to the Supreme Court of- the state from a decision of an inferior appellate court in favor of a defendant (Mallett v. North Carolina, 181 U. S. 589, 21 Sup. Ct. 730, 45 L. Ed. 1015); which make competent evidence of a disputed writing not competent before (Thompson v. Missouri, 171 U. S. 380, 18 Sup. Ct. 922, 43 L. Ed. 204); which enlarge the class of persons competent to testify in criminal cases (Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262); prescribing additional qualifications for jury service (Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904, 40 L. Ed. 1075); making a change in the organization of the Supreme Court of a state so that instead of a hearing before a full court of five justices the hearing is before a division — 421 — of the court composed of three out of seven justices (Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485); changing the place of trial from one county to another in the same district or to another district (Gut v. State, 9 Wall. 35, 19 L. Ed. 573); changing the manner of summoning and making up the jury (Perry v. Commonwealth. 3 Grat. [Va.] 632); giving the government a right of peremptory challenge of jurors it did not have when the crime was committed (Walston v. Commonwealth, 16 B. Mon. [Ky.] 15; State v. Ryan, 13 Minn. 370 [Gil. 343]); reducing the number of peremptory challenges allowed defendants in trials of felonies, not capital South v. State, 86 Ala. 617, 6 South. 52); reducing the number of grand jurors (State v. Ah Jim, 9 Mont. 167, 23 Pac. 76); preventing a defendant from taking advantage of variances in an indictment which are not prejudicial to him (Commonwealth v. Hall. 97 Mass. 570): authorizing an appellate court on writ of error to render such judgment as should have been rendered (Jacquins v. Commonwealth, 9 Cush. [Mass.] 279); making the court the judge of the law, whereas before the jury were (Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. Rep. 825); depriving a defendant of a right of change of venue from an examining magistrate (People v. McDonald, 5 Wyo. 526, 42 Pac. 15, 29 L. R. A. 834); changing practice from indictment to information (Lybarger v. State, 2 Wash. St. 552, 27 Pac. 449, 1029 ; State v. Hoyt, 4 Wash. 818, 30 Pac. 1060); the substitution of information for indictment under the authority of the state Constitution (In re Wright, 3 Wyo. 478, 27 Pac. 565, 13 L. R. A. 748, 31 Am. St. Rep. 94; People v. Campbell, 59 Cal. 213, 43 Am. Rep. 257). In the last case the court said: “It is not uncommon practice to change the number of grand jurors required 1o investigate criminal charges, but we have never heard of the right of the Legislature to make such changes questioned, neither has it ever been claimed that the charge must he investigated by the precise number of grand jurors of which that body was composed, at tlie time the act was committed.” While the tendency of courts, both national and state, is generally to hold rules of procedure as subject to change and not of substantive, vested right, some state courts lean the other way. An instance is the Criminal Court of Appeals of Oklahoma, which in Sharp v. State. 3 Okl. Cr. 24, 104 Pac. 71, expressed views at variance in some respects with those we entertain. But cited here that case is not within the general rule that the construction by the highest court of a state of its. Constitution and laws is binding upon the federal courts. The question before us is whether under the Constitution of the United States certain acts of Congress prescribing procedure may be applied to a trial for crime against the United States,' though not applicable when the crime was committed. True, it was statehood which brought the particular acts of Congress into play, and the Constitution of Oklahoma was one of the steps towards statehood; but in the sense of the rule referred to the construction and application of the Constitution and laws of the state is not involved in the case before us. In support of their contention counsel for the accused rely on Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; United States — 422 — v. Haskell (D. C.) 169 Fed. 449; United States v. London (D. C.) 176 Fed. 976; State v. Rock, 20 Utah, 38, 57 Pac. 532. The last three cases are like the case at bar, except that in the Rock Case there was a change of procedure from indictment to information. In the Haskell and London Cases the acts were done in the Indian Territory, and the indictments were found after the territory was admitted as part of the state of Oklahoma. The Haskell Case is rested largely on the Kring and Thompson Cases, and the London Case seems to have followed that of Haskell as the law of the district. We do not think either Kring v. Missouri or Thompson v. Utah decisive of the case at bar. We think the former is not at all applicable and the latter is distinguishable. This is the Kring Case: Under the law of Missouri in force when a homicide was comihitted, a conviction of murder in the second degree was an acquittal of murder in the first degree. The law was changed so that a sentence for the lesser crime lawfully vacated should not operate as an acquittal of the greater. After the new law became effective Kring pleaded guilty of murder in the second degree and was sentenced, but the sentence was set aside on his appeal. He was then tried and convicted of murder in the first degree. Tt was held the new law was ex post facto as to him. It may be noted that four of the justices dissented because the plea and sentence were after the change in the law. It was agreed that a sentence on a plea was equivalent to one on a verdict, and, what was done being equivalent under the local law to an acquittal of murder in the first degree, it was not competent for the state to deprive the accused of the benefit of it. Clearly that case has no bearing here. In Thompson v. Utah it was held that a person charged with the commission of a felony whilst Utah was a territory was under the third article of the Constitution and the sixth amendment entitled to a trial by a jury as at common law; that at the common law a jury was composed of twelve persons and unanimity was essential to a verdict; and that a provision of the Constitution of Utah when it attained statehood reducing the number of jurors to eight was ex post facto as to the accused. The right to trial by jury has always been regarded as one of the fundamental guaranties of the Constitution, and it was held that what the United States could not do in that respect while possessing full jurisdiction over the territory the mere admission to statehood did not empower the state to do. The principle deducible from this case is that a matter of procedure ordinarily subject to legislative .change may by provision of the Constitution take on the quality of a substantial right or safeguard secure from impairment. We think there is a clear distinction between that case and the one at bar. There, Thompson had a constitutional right of trial by a, jury of twelve, no more, no less, of which he could not be deprived either by Congress or by the new state. What was ordinarily a matter of procedure thereby assumed the dignity of a fundamental safeguard not to be destroyed by a subsequent law. In the case at bar the accused was by the fifth amendment exempt from accusation except by presentment or indictment of a grand jury, but the amendment went no further in terms, and if the accused had any constitutional right as to the number of grand jurors, which we need not de — 423 — termine, it was tliat there should be not less than 12 nor more than 23 as at common law. That right was accorded him in a grand jury of 19. True, a maximum of 1(5 was prescribed by the statute of Oklahoma Territory, but there was no constitutional quality in that particular number. It was purely statutory. As was said in Matter of Moran, 203 U. S. 97, 27 Sup. Ct. 26 (51 L. Ed. 105): “The fifth amendment, requiring the presentment or indictment of a grand jury, does not take up unto itself the local law as to how the grand jury should be made up and raise the latter to a constitutional requirement.” The details of qualification and impaneling and the precise number between 12 and 23 are matters with which the amendment is not concerned. They belong to procedure, and are left to legislative discretion. They are not inherently of substantive right within the tests of ex post facto laws above enumerated. Indeed, as already noted, it has been held that, in the absence of a constitutional requirement of indictment, a Legislature may do dway with it, and substitute information for offenses previously committed. How less intrinsically important is the mere number of grand jurors! An indictment is not a trial for crime. It is merely a form of public accusation upon which a trial may afterwards be had. Historical research into the origin of the procedure shows that the important thing was not the particular number of persons who participated in the investigation or who made the charge of their own knowledge as in a presentment, hut that it should be under official or public sanction so that one might not be put to the ordeal upon mere private accusal. It is urged that prejudice resulted from an increase of the maximum number of grand jurors, 16, under the statute of the territory, to 19, because out of the greater number it was easier to secure the concurrence of 12 to an indictment. We think the prejudice more imaginary than real. At the common law there was a range from 12 to 23, and, if the practice under that law was in contemplation at the adoption of the fifth amendment, it is apparent that the greater or less number between the limits was regarded as of such minor importance that it was left to the discretion of the courts. Even under the act of Congress, any circuit or district court impaneling a grand jury may determine whether there shall be 16 or 23 members or any number between, and it is common for a grand jury in one of those courts to vary in the number of attendant jurors during a single term of court. Safeguards of life and liberty regarded as substantial and important are not usually left in such an indeterminate condition. If a court may vary in everyday practice between the maximum and minimum limits no reason appears why the legislative branch of the government may not constitutionally exercise a similar discretion without impairing any substantial right of a defendant. This conclusion makes it unnecessary to determine whether the question can be raised for the first time in an appellate court. The trial court, following the federal practice, limited the accused to three peremptory challenges of petit jurors. He claimed more. Section 819, Rev. Stats. (U. S. Comp. St. 1901, p. 629), gives a defendant charged with treason or a capital offense 20 peremptory challenges, in cases of felony 10, in all other cases 3. Was the of — 424 — fense of the accused a felony or a misdemeanor? If it was a misdemeanor at common law, it retains its degree under the laws of the United States, unless, which is not the case, Congress has declared otherwise either directly or by adopting a state law defining its character. Considine v. United States, 50 C. C. A. 272, 112 Fed. 342; Morris v. United States, 88 C. C. A. 532, 161 Fed. 672. “Perjury at common law is a misdemeanor.” 2 Whart. Crim. Law, § 1244. If the principal offense was technically false swearing at common law as distinguished from perjury, it was still a misdemeanor. United States v. Bailey, 9 Pet. 238, 256, 9 L. Ed. 113; O’Mealy v. Newell, 8 East, 364. The procurement of another to commit the principal offense would also be a misdemeanor. But, since a statute of Oklahoma Territory gave five challenges, it is argued that the law of the United States is ex post facto as applied to the accused. What we have said regarding the compositipn of the grand jury disposes of this contention. He was entitled to a trial by. an impartial jury of 12 persons, and there is nothing to show it was not given. As to the evidence: The absence of references in the briefs to pages of the record preclude the examination of many of the objections argued. In some instances there are no references whatever to the record, in others they are merely to the places where the assignments of error may be found, and in still others only to pages where certain exhibits appear but no recitals showing they were received in evidence, the grounds of obj ection, the rulings of the court, or exceptions. These conditions apply to-most of the discussion of the evidence.' The record contains 700 printed pages, and to require a search of it to discover the basis of assignments of error would impose a burden on the court it cannot assume. It is the general rule in the courts of the United States 'that the parts of the record to be examined must be definitely pointed out, and we have frequently directed attention to it and enforced it. Some of the complaints in the briefs are disposed of by what we have already said on the sufficiency of the indictment. Others relate to evidence admitted in support of counts in the indictment as to which' there was an acquittal. No error was committed in that open to our examination. It was proper for the government to show an actual knowledge and understanding on the part of the entry women and the accused of the conditions and requirements essential to the acquisition of the public lands which bore upon the final proofs out of which the offenses grew, the willfully false testimony of the former and the intentional procurement thereof by the latter. A wide latitude in the evidence is permitted to show corrupt motive and intent, particularly when they constitute such an important element of an offense like subornation of perjrtry. Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278. In the case just cited the court quoted the following from Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288, 37 L. Ed. 118: “The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conelusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth.” “The modem tendency, both of legislation and of the decision of courts, ia — 425 — to give as wide a scope as possible to the investigation of fads. Courts of error are especially unwilling to reverse cases because unimportant and possibly irrelevant testimony may have; crept in. unless there is reason to think that practical injustice has been thereby caused.” Complaint is made that the court refused instructions calculated to limit the subornation of perjury to the final proofs by the entry women of their settlement, residence, and cultivation, and that the jury were therefore confused and misled by affidavits received in evidence, but not the subject of the offenses charged. There is no ground for this complaint. The charge of the court was so clear and direct there could have been no misunderstanding, and, when exceptions were taken at its conclusion bj' counsel for the accused, the court again told the jury the correct limitations. It appears counsel was then satisfied. This disposes of a number of assignments of error relating to alienation, etc., by the entry women, though it may be added that one count, on which there was an acquittal embraced that matter. In the counts on which there was a conviction there was no charge of subornation of perjury with respect to anything but'the final proof of settlement, residence, and cultivation of the lands entered. It is also urged that the court erred in refusing requests to instruct upon certain elements essential to subornation of perjury. They were stated to be as follows: (11 A witness must have testified falsely, knowing, or believing the testimony to be false; (2) the accused must have known or believed that the testimony would be false; (3) the accused must hare known or believed the witness would give the false testimony with like knowledge or belief; (4) the accused must have induced or procured the witness to do so. The charge of the court upon this matter which we think entirely sufficient is shown by these excerpts; “Til the next place, the testimony given in the final proof proceeding musí have been false, and willfully false, and the person testifying must, have willfully and contrary to her oath stated or testified to the material matter which she did not believe to be true. It is not sufficient that the testimony may ha ve been false in the sense that it was incorrect, or that it was not the fact, or was given through surprise or confusion or inadvertence, or a bona fide mistake as to the facts; aud. to he willful, it, must have been intentional, and the person giving the testimony must not have believed that her statement made as being true was true and she must have meant to make the false statement and to have it produce the effect of testimony ns though it was true.” “If the testimony or some, statement of fact therein was false, then was it willfully false and not believed by the person testifying thereto to he true? If the testimony was false, but yet was not willfully given, or was given under the belief that it was tme. there was no perjury.” “If you find that perjury was committed as charged in the indictment, then it will be your duty to proceed to iriqulre whether the defendant procured the person charged to have been suborned to commit that offense, and is consequently guilty of subornation of perjury. In order to make out this offense against this defendant, it is incumbent upon the government to satisfy you beyond a reasonable doubt that the perjury was in fact committed by the person suborned; that the testimony of the person suborned was willfully false and willfully given contrary to her oath and not by her believed to be true, and the defendant knew or believed that the testimony given would be false; that the defendant knew that the person suborned would willfully testify falsely contrary to her oath, and not believing the testimony to be true; and that the defendant induced or procured the person suborned to give such false testimony.” — 426 — There were requests for a directed verdict of acquittal, but we think there was substantial evidence of guilt. There were public lands within the extensive inclosure of a ranch of which the accused was resident manager. The motive was to secure these lands for the owners of the ranch. The' course pursued was to incite women whose homes were in Kansas to make homestead entries on the lands under agreements to sell when the title was secured. The accused was in charge of the venture and paid all the costs of the proceedings as they were incurred, the expenses of the entry women on their various trips from their homes and their subsistence when on their claims. He put up the little cabins and paid for the meager, temporary furnishing. At times they stopped at the ranch house occupied by him, and were otherwise aided by him in what they did. The jury were justified in believing from the evidence that he was fully aware of their purposes, of all they did and expected to do, and that they had no intention at the time of settlement or afterwards of making the lands their homes; that their occasional visits to the lands did not constitute residence under the law; and that what they did was a mere evasion of its provisions; also, that he knew they would make final proofs and to do so would have to swear falsely, and that they knew they were so swearing when they made the proofs. His advice that they must follow the law may well have been regarded as a subterfuge, because, knowing what the law was, that they were not following it, and that his outlay would come to naught if they testified truthfully at the final proofs, nevertheless he continued his assistance and disbursements to the end. The judgment is affirmed.