Bucklin v. United States

delivered the opinion of the court.

This is the same case as the one just disposed of. The accused being in doubt whether the judgment against him could be reviewed here on appeal, brought this writ of error.

The plaintiff in error was indicted in the District Court of the United States for the District of Kansas under section 5392 of the Eevised Statutes of the United States, providing 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, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states

By the third section of the act of June 14, 1878, c. 190; 20 Stat. 113 , entitled' “ An act to amend an act entitled An act to encourage the growth of timber on the Western prairies,’ ” ( 18 Stat. 21 , c. 55,) it was provided, in reference to the affidavit required to be filed by any person applying for the benefits of that act, that if at any time after the filing of said affidavit, and prior to the issuing of the patent for said land, the claimant shall fail to comply with any of the requirements of this act, then and in that event such land shall be subject to entry under the homestead laws, or by some other person under the provisions of this act: Provided, That the party making claim to said land, either as a homestead-settler, or under this act, shall give, at the time of filing his application, such notice to the original claimant as shall be prescribed by the rules established by the Commissioner of the General Land Office; and the rights of the parties shall be determined as in other contested cases.”

This act, and all laws supplementary thereto or amendatory thereof, were repealed by the act of March 3, 1891, entitled An act to repeal timber-culture laws and for other purposes.” But the repealing act declared that it should not affect any valid rights theretofore accrued or accruing under said laws, but all bona fide claims lawfully initiated before its passage might be protected on due compliance with law, in the same manner, on the same terms and conditions, and subject to the same limitations, forfeitures, and contests, as if the repealing statute had not been enacted. 26 Stat. 1095 , c. 561.

The indictment charged, in substance, that the accused, for the purpose of contesting a named timber-culture claim that had been made and entered in the proper land office at Wichita, Kansas, presented himself before H. P. Wolcott, the

At the time of the trial there were pending in the court be' low two other separate, indictments, one against Thomas Bucklin and one against George Elder, each of whom was indicted for perjury growing out of the same transaction as that set out in the indictment against Daniel A. Bucklin.

By order of the court the three cases were consolidated and tried at the same, time and by the same jury.

Upon the conclusion of the evidence, and after receiving the instructions of the court, and hearing the argument of counsel, the jury retired, and, having deliberated three days, without making a verdict, came into court, in a body, and through their foreman propounded to the court this question: “ Can we find a verdict as to some of the defendants and disagree as to the others?” The court answered, “You can find a verdict of guilty as to all, a verdict of not guilty as to all, or you can find some guilty and some not guilty, but you cannot find a verdict as to some and disagree as to others.” To this action of the court the accused excepted.

. The jury again retired, and returned a verdict of guilty as to Daniel A. Bucklin, and not guilty as to each of the other defendants.

Motions for new trial and in arrest of judgment having been successively made and overruled, the defendant was sentenced to hard labor in the penitentiary for the term of one year and six months and to pay a fine of one hundred dollars.

2. One of the grounds for arrest of judgment was that the indictment does not state an offence under the laws of the United States. This point does not seem to be pressed in the brief of counsel. It is without merit. The indictment conforms, in every substantial particular, to section 5396 of the Revised Statutes, providing that “ in ¿very preséntment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and Avithout setting forth the commission or authority of the court or person before whom the perjury was committed.”

3. It is assigned for error that the court overruled the defendants’ motion for a new trial. A refusal to grant a new trial cannot be reviewed upon writ of error. Blitz v. United States, 153 U. S. 308 , 312; Wheeler v. United States, 159 U. S. 523 .

4. But there was error prejudicial to the accused in the

The learned Assistant Attorney General refers to section 1036 of the Revised Statutes, providing that “ on an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the cause as to the other defendants may be tried by another jury.” He properly insists that that section is not, in terms, applicable to separate indictments, tried together. But he frankly states that the instruction is so clearly erroneous as to suggest the possibility of a mistake in the bill of exceptions.

Upon a careful examination of the record we find nothing that justifies the assumption that a mistake occurred in the preparation Of the bill of exceptions.

Taking the record as disclosing all that occurred at the time the jury came into court for additional instructions, there was error in the ruling that the jury could not find, a verdict as to some of the defendants and disagree as to others. The jurors had been deliberating for three days without returning a verdict as to either of the defendants, when they were instructed that their duty was either to find each defendant not guilty, or each guilty, or some guilty and the others not guilty! If some of the jurors wavered in their minds as to the guilt of all the defendants' — and the delay in returning the verdict justifies the belief that such was the fact — it may be that the instruction of which complaint is made worked injury to the plaintiff in error. We cannot say that it did not. To say that the court would not receive from the jury a report of a disagreement as to one defendant was, in effect, to announce that the jurors would be held together until the court should deem it to be its duty to discharge them finally, and would not be discharged unléss or until they returned a verdict of guilty or not guilty. This tended to coerce the jury into making a verdict.. ' Tke accused was entitled, of right, to go

As it was competent for the jury to return a verdict of guilty or of not guilty as to the defendants Thomas Bucklin and George Elder, and to report a disagreement as to Daniel A. Bucklin, the instruction complained of must be held to have been erroneous ; and as this error may have injuriously affected the rights of the accused, the judgment is reversed; with directions to grant him a new trial.

Reversed.