
    UNITED STATES v. HERR et al.
    
    ERROR TO THE DISTRICT COURT OP THE UNITED STATES FOR THE DISTRICT OF COLORADO.
    No. 291
    Argued October 22, 23, 26, 1908.
    Decided December 14, 1908.
    Decided, on the authority of United States v. Keitel, ante, p. 370, and United States v. Forrester, ante, p. 399.
    157 Fed. Rep. 396, reversed.
    
      The facts are stated in the opinion.
    
      The Attorney General and The Solicitor General, with whom Mr. Edwin W. Lawrence, Special Assistant to the Attorney General, was on the brief, for the United States.
    
    
      Mr. B. W. Ritter and Mr. N. C. Miller for defendants in error.
    
      
       For abstract of argument see United States v. Keitel et al., ante, p. 372.
    
   Mr. Justice White

delivered the opinion of the court.

The court below sustained a demurrer to the indictment in this case, for the reasons which caused it to quash the first count of the indictment in the case of United States v. F. W. Keitel, ante, p. 370.

The indictment alleged a conspiracy to defraud the United States of coal lands in violation of § 5440, Rev. Stat. The conspiracy charged was, speaking in a broad sense, of the same general nature as that set forth in the first count of the indictment in the Keitel case. In the argument at bar, however, counsel differ as to the correct construction of the indictment here under consideration, the United States contending that the conspiracy to which the indictment related concerned entries based upon preferential rights, while on the part of the defendants in error it is insisted that the conspiracy related to only cash entries. In view, however, of our ruling in the Keitel case, No. 286, and the reasoning by which the decision in that case was held to be controlling in United States v. Forrester et al., No. 287, just decided, the contentions referred to are irrelevant on this writ of error.

As it results from the opinions in the cases just referred to that the court below erred in sustaining the demurrer to the indictment, its order so doing must be reversed.

Reversed and remanded for further 'proceedings in conformity to this opinion.  