FEDERAL REPORTER ,
vol. 43.
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UNITED STATES V. KONKAP-OT ,'fl
et al.
(Circuit Court. ]j].1). WiscOnBin. Julyll,1890.) 1.,
Rev. St. U; S; § 2461, ,wnich forbids the cutting of timber growing on land of the United States whiohhas ,bf3e,lli,reserv,',ed or purcha,sed for supplying timber for the navy, and the cutting or re,J;llovlI.lof timber from any other land of t!1e with intent to export or dispose of the same otherwise than for the use of the navy, does not apply to Indian reservations' in Wisconsin, since its objeot is to' PrQtect tim1:)er suitable for the use Qf the navy. ton destruction of timber upon Indian reservations does not apply to one who removes and uses for building purposes timber which has been cut on an Indian reservation by another person wlthout his aid or enoollragement. '
LAW.
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Rev. St. U. S. §5388,as amended June 4, 1888, which forbids the cutting or wan' Error to district court.
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At Law.
CharlesW. Felker, for plaintiffs in erroi'.
Uf. A. Walker, U. S. Dist. Atty.
GREsHAM,:r.' ·The defendants were convicted and sentenced for cutting and removing timber from an Indian reservation. The first count of the charges that on the 1st day of January, 1889, the defendants unlawfully entered uponan SO-acre tract,-describing it,-part ()f the unallotted lands of the belonging to. the Stockbridge tribe ofIndians l:nWisconshi, and cut and away 75 pine trees, alid other trees then and there the. value of $700, withintent to uSe and dispose 6£ the. same the open mat'ket for their mvn behefit, gain, and profit, and not for the use of the. navy of the United SUttes. The second count differs from the first in omitting the charge tpt{t the trees were not'cut with the intel1.tionof disposing of them for the USe of the navy.. Section 2461, Rev. St., declares that if any son shall cut or cause to be cut, or aid or assist in cutting, or shall wantonly destroy,or Cll.use .or .aid in w,ahtonly destroying, any oak or cedar trees, or other standing, growing, or being on any lands orthe United States which have been reserved or purchased for the use ofthe United States for supplying or furnishing therefrom timber for the navy of the United States; or if any person shall remove, or aid or assist in removing, from any such lands any live oak or red cedar trees, orotber timber, unless 4uly authorized so to do by order in writing of a competent officer, an(:1' for the use of the navy of the Uqited States;, or if any person shall cut, or cause to be cut, or aid or assist in cutting any oak or red cedar trees,dr other tiniber on. or shall remove, or cause to
UNITED STATESf'. KONKAPOT.
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be removed, or aid or assist in removing, any live oak or red cedar trees, or other timber from, any other land of the United States, with intent to export, dispose of, or employ the same in any manner whatsoever other than for the use of the navy of the United States, he shall pay a fine of not less than treble the value of the trees and timber so cut or removed, and be imprisoned not exceeding 12 months. Section 5388 declares that every person who unlawfully cuts or aids in cutting, or wantonly destroys or procures to be destroyed, any timber standing on lands of the United States which have been or may reserved or purchased for military or other purposes. shall pay a fine of not more than $500, and be imprisoned not more than 12 months. This section was amended June 4, 1888, (25 St. at Large, 166,) by inserting before the penalty the following clause: "Or upon any Indian reservation or lands belonging to or occupied by any tribe of Indians under authority of the United States." , The evidence showed that on or about the 1st day ofJanuary, 1889, the defendant Aaron Konkapot, a Stockbridge Indian, and a member of that tribe, cut and felled 53 pine trees of the value of $100, then standing upon an SO-acre tract of the un allotted lands of the reservation, and that 'the defendant Edwin Miller, an Indian of the same tribe, and a member of it, on the 1st day of May of the same year removed part of the timber so cut; that prior to the cutting and removing there had been allotted to each of the defendants out of the reservation 80 acres, which tracts were four miles from where the timber was cut; that Konkapot cut the trees for the purpose and with the intenti.on of using them in building upon his 80-acre tract a h()use and· barn, and that /some months later Miller removed part of the logs with the intention and for the purpose of building a house upon his 80-acre tract; that none of the timber was sold or offered for sale by either of the defendants; and that the Indian agent in charge of the Stockbridge tribe and the reservation· forbade the cutting by Konkapot and the removal by Miller. The courtinstructed the jury that the defendants held the lands allotted to them in severalty, and they had no right to cut or remove timber from the unallotted lands for the purpose of erecting upon their allotted land any buildings or tenements whatever; and that the reservation. or unallotted land, was held by the United States in trust for other Indians entitled to allotment, or in trust for the common benefit of the tribe, and could not be despoiled for the purpose of improving allotted land, or erecting buildings upon it. The first two. clauses of section 2461 relate to the cutting and destruction of timber on lands "which have been reserved or purchased for the use of the United States for supplying or furnishing therefrom timber for the navy of the United States." The defendants neither cut, destroyed, nor removed timber on or from such land. The remaining clause, fairly construed, does not embrace Indian reservations such as the Stockbridge reservation. This section was enacted to protect live oak, red cedar, and· other timber fit for the use of the navy upon lands purchased or reserved by the government for that purpose. Section 4751 provides that all penalties and forfeitures incurred under section 2461 shall be sued for, recovered, and distributed under the direction of the secretary of the v.43F.no.1-5
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FJllDERAL REPORTlllB,
navy, and )paid . over, half to the informers, if any, or captors, where seized" ahd the. other half to the secretary of the navy for the use of the navy pension fund. It would hardly be contended that the secretary of the navy could 'claim under this section any portion of a fine or forfeiture incurred under any statute for cutting, removing, or destroying timber standinK upon the Stockbridge reservation, or any other Indian reservation..The defendants were not guilty under section 2461. The unlawful cutting or wanton destruction of timber standing upon lands of the United States which have been or may be reserved or purchased for military or other purposes is made an offense by section 5388. Miller was not a party to the cutting of the trees. He simply removed some of the. trees that Konkapot had cut and left lying on the ground some months before. The evidence shows that Konkapot felled the trees, and Miller .removed part of them, and it fails to show that either aided or encouraged. the other. The indictment is for cutting and carrying away timber, and section' 5388, in both its original and amended form, is for unlawfully cutting or wantonly destroying standing timber. Miller did not remove standing timber from the reservation to build a house upon his allotted tract, and, if he had done so, he would. not have been guilty of wantonly.. or otherwise destroying it. It is insisted by the attorney for the govern-. ment that Indian reservations were embraced in section 5388 as it originally stood, such being land of the United States reserved for other than militar,ypurposes. If, that construction be ,correct, the section was not or broadened by the amendment of 1888. It is plain that by cutting trees on the reservation Konkapot brought himself within the letter of the section as amended. He did not, however, cut the trees for sale or profit., To occupy and cultivate the tract allotted to him eralty he.needed a house and bam, and the trees were cut for the sole purpose of erecting such buildings upon his premises. It seems harsh to visit upon him the penalty of the statute for this act;·, but the court must administtlf tbe law as it finds it. The judgment of the district court against Konkapot is a.ffirmed, and as to Miller it is reversed, and remanded for further proceedings.
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UNITED STATES V. EnWARnS.1 (Cirot/JI,UJ0'lJ/!'f'S. D. Alabama. April PIIlRJURy-INDIOTMENT-" WILLFULLY. "
H, 1890.)
An indictment for perjury under Rev. St. § 5899, must allege, among other things, that the false oath was taken willfully; and an allegation that it was corruptly taken does not embrace the element of willfulness.
Demurrer to IndiGtmept fpr Pe.rjury. .' . . . M. D. Wickersham, Dist. Atty., for the United States. J. J. Parker, for defendaut, , TOU:LlolIN, J. ,To constitute perjury, iUs essential that the oath was administered in the manner .prescribedby law, and by some person duly authorized to administer the same, in the matter wherein it was taken. The false statement must be material to the issue in the case in which it was made, and ifmustbewHlfully made. U. S. v. Stanley; 6 'rt[c'Lean, 409. Perjury cannot be committed unless the person taking the oath not only swears to what is false, or what he does not believe to be true, but does so willfully. U. S. v. Dennee, 3 Woods, 39; U. S. v. Evans, 19. Fed. Rep. 912; 3 Green!. Ev. § 189; 2 Bish. Crim. Law, §§ '1017-4046; U. S. v. Hearing, 26 Fed. Rep. 744. Rash or reckless statements on oath are not perjury, but the oath must be willfully corrupt. Authorities supra, and U. S. v. Moore, 2 Low. 232. The Revise4 Statutes of the United States, § 5392, under which this indictment is found, makes it of the essence of the offense of perjury that it be committed willfully. U. S. v. Shellmire, Baldw. 378. But it is contended by the district a.ttorney that the word "corruptly," used in the indictment, is the equivalent of "willfully." The understanding of the court is that the two words have an entirely different meaning. "Corruptly" means viciously, wickedly. "Willfully" means with design, with some degree of deliberation. To say that testimony was corrupt is to say that it was wicked or vicious, whereas, to say that it was willful is to aver that it was given with some degree of deliberation; that it was not due to . prise, inadvertence, or mistake, but to design. The statute uses. the word "willfully," and makes it of the essence of the offense; ,and the court is not persuaded that the averment that a false. oath was cor, ruptly taken is of the same import as the averment that it was willfully taken. The court being of the opinion that willfulness is an essential ingredient for the offense of perjury under section 5392, Rev. St., it must be charged in the indictment, or the indictment will be bad.. The first count in the indictment under consideration does not aver with distinctness before what tribunal, officer, or person the oath was made, or by whom it was administered; and it fails to aver that the matter subscribed and stated by the defendant was so subscribed and stated by him willfully, and contrary to such oath. And the second 1 Reported
by Peter J. Hamilton, Esq., of the Mobile bar.