The San Francisco call., 1904-08-16

fers to submit himself TO this court,
TO await any action the Federal Grand
Jury Of this district may take regard
ing the charges against him." Knight
used up all the time allotted to the
defense. and was stopped at last by
Judge de Haven, who ordered an ad-
journment for recess.
OUTLINES THE OFFENSE.
Judge Pugh opened the argument at
the afternoon session, his points largely
constituting an analysis of the princi-
pie set forth in Judge Lacombe's de-
cision that, as the Government suffered
no financial loss as q result of the al
legged criminal acts for which the de-
PENDANTS stand indicted, no fraud was
committed against the Government.
1T is not necessary that the Gov
ernment lose property or money IN
transaction that is fraudulent on its
face to establish such fraud" he said.
1T is sufficient that such frauds tend
in themselves to obstruct a just and
eQuita BILE administration Of the laws.
The obstruction of the laws in any way
or the commission of any act that tencs
TO divert their proper administration.
IL such acts are committed for that
purpose and for the advantage or gain
of the person committing such acts.
the fraud is as complete against the
Government as IL IL suffered actual
financial loss.
THE Government exists for the pro-
lection and service of the people. This
being its chief aim. any action tend
ing to impair its functions in any way
certainly operates as a fraud against
il, a greater fraud than one involving
only financial loss 10 the Govern
ment."
CONSIDERS THE FUTURE.
Departing from this line OF argu-
RI 1fro
ton as 10 whether the contention OF
the defense that the Government suf-
fered no less Is tenable. In the opin-
ion OF Judge Pugh the Government,
II il has not as yet suffered actual loss
through the alleged acts of the de-
PENDANTS, is liable to suffer such loss
in the future, for, he said, a title to
land held in the name of fictitious
person is not a title and if in the fu-
ture any action is brought against the
Government to recover the lands II ac-
cepted from the defendants in lieu Of
other lands taken by them il is hardly
possible that IL could sustain con-
tention that as an innocent purchaser
IT is entitled TO protection in its hold
ing. It would be more probable that
the rule of ''caveat emptor would
prevail against il and the fictitious IL
tie would avail IL not
Garrett McEnerney of Hyde's eoun-
sci. who, by courtesy of cOunsef for
the Government, was allowed few
minutes Of their time. contended that
so far as the Government was con-
cerned II had no established policy in
relation TO the parceling out of public
lands and was not affected by the al
legged acts Of the defendants In view
OF this fact even the contention of the
counsel for the Government that a
fraud against the administration Of
the laws had been committed must
fall. In answer 10 the contention that
the titles passed by the defendants
when they selected lieu lands were not
titles upon which the Government
could even sustain a position of bona
fde innocent purchaser. McEnerney
said that il such were not in fact ti-
ties then by no conceivable way could
the defendants be guilty of the fraud
with the commission Of which they
stand charged.
DECISION Is QUESTIONED.
Mr.. Heney closed the case for the
Government, following the same rea-
II was his closing words, however, that
lent spice TO his argument. He said:
Notwithstanding conscientious re-
search. have failed to find authority
20 support the position taken here by
counsel for the defense that a decision
IeeCIltu IN d h1DedS corpus pIOCeeu-
ing in case in which neither of the
defendants here at bar was a party
can be construed as supporting a plea
Of res adjudicata-' If I understand
the law correctly will say that even
had Mr.. Benson been acquitted on
trial of the Offense charged against
him. il would not stand as a bar
against the trial of these defendants.
The Judgment in the Benson case
IS not final. The Government has
taken an appeal from that decision
with full confidence that It will be
reversed. And I further believe that
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