
    UNITED STATES v. CUNNINGHAM et al.
    (District Court, D. Oregon.
    April 21, 1904.)
    No. 4,741.
    1. United States — Conspiracy to Defraud — Public Hands — Fraudulent Entries.
    Where an indictment charged that defendants did unlawfully conspire together to defraud the United States out of a portion of its public lands on homestead entry, etc., such allegation included all proceedings as a whole necessary to complete the transfer of the title.
    
      2. Same — Pkesumptions.
    It would be implied from such, allegation that the affidavits and proofs were such as were required by law to entitle the entryman to a patent, and that such affidavits and proof were false.
    3. Same — Inconsistent Allegations.
    An allegation in an indictment that defendants did unlawfully conspire to defraud the United States out of a portion of its public land, by means “of procuring persons” to make false and fraudulent entries on such land, was not inconsistent with a further allegation as to the overt acts charged, showing that the false proofs and entries were made by defendants themselves, and not by others procured by them.
    On Demurrer to the Indictment
    John H. Hall, U. S. Atty.
    John J. Balleray and J. H. Raley, for defendants.
   BELLINGER, District Judge.

The demurrer is overruled, upo» the authority of thé case of Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545. In that case the Supreme Court of th». United States holds an indictment good that charges that the defendants did falsely, unlawfully, and wickedly conspire to defraud the United States of the title and possession of large tracts of land by means of false, feigned, illegal, and fictitious entries of said .lands under the homestead laws of the United States; the said lands being then and there public lands of the United States, open to entry under said homestead laws, etc. That case is identical with the present case in its essential features.

This indictment charges that the defendants did unlawfully conspire together to defraud the United States out of a portion of its public lands, upon homestead entry, etc., by means of procuring persons to make false and fraudulent entries upon such lands, at the United States Land Office at La Grande, Or., by causing and procuring persons fraudulently to make proof of settlement and improvement upon said lands, etc. The allegation that the defendants conspired to defraud the United States by making false and fraudulent entries upon the public lands thereof includes all the proceedings as a whole necessary to complete the transfer of title. It is implied from this allegation that the affidavits- and proofs were such as are required by law to entitle the entryman to patent, and that these affidavits and proofs were false.

It is objected to the indictment that the allegation that the defendants intended to carry out their conspiracy by means of procuring persons to make the false and fraudulent entries is negatived by the overt acts charged, which show that the false proofs and entries were not procured to be made by other persons, but were made by the parties to the conspiracy themselves. The overt acts charged to have been done may be innocent in themselves. They may not follow the particular description of what was proposed, and yet be sufficient for the purposes of the indictment. I am of the opinion that the words “procure persons” to make false proofs, etc., are not inconsistent with the making of such proofs by the conspirators themselves.  