United States v. Robinson

This cause comes here for review upon the order and judgment of the court below, sustaining a demurrer to the indictment. The grounds of demurrer are that the facts stated do not constitute a public offense, nor any offense against any law of the United States. The questions raised and argued by counsel for the defendant in error arise upon that portion of the indictment which seek to charge the defendant. with the offense of subornation of perjury as follows: “One James E. Robinson, late of said district, etc., did solicit, suborn, procure, instigate, and persuade one William Clarke to be and appear as *76a witness in his own behalf, in the matter of a certain homestead claim of the said William Clarke, known as homestead entry number ten thousand eight hundred and sixty-one, for the southwest quarter of section numbered 14, of township numbered one hundred and thirty-three, of range numbered sixty-one, in said district and territory, which said claim .was then and there pending before Horace Austin, the register of the United States land office at said city of Fargo, and he, the said Horace Austin, as such register, then and there having competent and lawful jurisdiction of said claim, and the said claim being then and there a case in which a law of the United States authorized an oath to be administered, and upon the the hearing of said claim before the said register to wilfully, willingly, knowingly, wickedly, corruptly, and contrary to his oath, swear falsely to certain material matters of inquiry in said case, which he, the said William Clarke, did not then and there believe to be true, and among other things in substance and to the effect following, ” etc.

It was contended by the counsel (1) that the facts stated do not show the occasion or subject of the inquiry in which the oath was taken, or that the matter sworn to was material; (2) that it does not appear from the facts stated in the indictment that the person or officer before whom the oath was taken, was authorized to' administer an oath in any matter or proceeding than legally pending before him. The only allegation showing what was the subject of the inquiry before the register of the land office, is that which states it to be “in'the matter of a certain homestead claim of the said William Clarke, known as ‘homestead entry’ numbered ten thousand eight hundred and sixty-one,” etc. Inasmuch as the law specially defines the powers of the register of the United States land office, and limits that power to particular acts and proceedings which are prescribed, it is quite difficult to determine from this statement whether the oath taken or the proceeding had was in a matter which the register of the land office had jurisdiction of, or in which he had the power to act. If it was the matter of a homestead claim or homestead entry, an oath might be legally taken before *77the register; if it was an affidavit, how and where was it to be used? As it appears in other parts of the indictment that the matters sworn to were not such as could be material to a homestead claim, but might be in a pre-emption, we cannot, by giving the language the most liberal construction, hold it s'ufficently definite to inform the court or the accused what the nature of the proceeding was in which the oath was taken. The facts should be averred which constitute the occasion; the court will take notice of the law. The subject of' the inquiry should be set forth distinctly and directly, to enable the court to know whether the matter deposed by the defendant was material and pertinent to the issue. Perjury cannot be assigned as respects matter which is immaterial to the issue or not in a judicial proceeding. Com. v. Smith, 4 Allen, 243; People v. Collins, 1 Mich. 137; People v. Gage, 26 Mich. 30; People v. Fox, 25 Mich. 493; Beecher v. Anderson, 45 Mich. 552; S. C. 8 N. W. Rep. 539; Whart. Crim. Law, §§ 2240, 2241, 2252, note n; Com. v. Hatfield, 107 Mass. 227. In an indictment for subornation of perjury the same rules apply and the same allegations are necessary as in perjury. 4 Allen, 243, supra; Whart. Crim. Law, § 2271.

It is alleged that this matter of a homestead claim or homestead entry was pending before Horace Austin, the register of the land office, and that the said register then and there had competent and lawful jurisdiction of said claim, and that it was a case in which a law of the United States authorized an oath to be administered. These allegations are conclusions of law; they may very properly be made, but are of no importance unless the facts stated sustain them. It may fairly be inferred, from what is stated, that this was the commutation of a homestead to a pre-emption, and that the oath was taken on the final proof. If this was the fact, then the claim referred to in the indictment was not and could not have been pending before Horace Austin, register, but if authorized by the law must have been pending before the register and receiver of the United States land office. Section 2263, Rev. St. It is not perceived how any of the matters upon which perjury is assigned could in any *78event have become material in any investigation before the register, or register and receiver, of the United States land office.

Some objections were urged to the averments negativing the facts sworn to; but, as the views already expressed dispose of the case, it is unnecessary to consider them. The order and judgment of the court below is affirmed.