The San Francisco call., 1904-09-03
GOVERNMENT WINS POINT
IN FAMOUS LAND CASES
Dimond and Hyde in
Custody Pending
Petition.

answered the PRAYER of the United
States District Attorney and United
States Prosecutors Francis ]. Heney
and Judge Pugh and furnished legal
definitions and interpretations that
were omitted in the decision of Judge
Lacombe of New York in the John A.
Benson trial.
According to the decision handed
down by Judge de Haven the defend
ants, Dimond and Hyde, charged with
having fraudulently secured lands be-
longing TO the United States, must be
taken into custody of the United States
Marshal and removed to the District of
Columbia for trial. In the decision
handed down by the New York court
John A. Benson, arraigned on a similar
charge TO that brought against Hyde
and Dimond, won his case against the
Government. Hyde and Dimond have
not been so lucky, and last evening
they spent the night in the custody of
deputy marshals pending the hearing
of the habeas corpus petition, that will
come before Judge Morrow of the
United States Circuit Court Of Appeals
this morning at $3.50 o'clock.
Hyde was permitted TO go to his
home on Jackson street with the deputy
assigned by Marshal Shine, and Dimond
retired TO the seclusion of the Hotel
Plymouth. Bonds in the sum of $l0O00
each were prepared for filing, with w.
r. Wheeler and W. r. Sherwood sure
ties for Dimond and II. C. Morris and
w. r. Sherwood securities for Hyde.
Garret w. McEnerney and Bert Schles-
niger represented the defendant Hyde.
and Samuel Knight was in court for
Dimond. The bonds were not filed, it
being determined by the defense that
the accused go into custody pending
the hearing of the habeas corpus pro-
ceedings to-day.
There were few persons present in
court in the forenoon when Judge de
Haven rendered his decision. and tel
ephOne message to Garret McEnerney
brought him to the scene. After court
had adjourned at the noon recess there
were lively times in and about the cor
ridors, it being reported that the de-
PENDANTS would be forced to take the
evening train for Washington did they
not succeed in staying proceedings or
securing bonds. After a consultation
with the prosecution and defense Judge
Morrow agreed 10 hear the petition to-
day. but it is probable that the case
will be permitted to go to Washington
on the decision as rendered by Judge
de Haven.
Judge de Haven stated that the ap-
plication OF the United States Attor-
neys for a warrant is under section 1O14
Of the Revised Statutes. The indict-
ment contains forty-two counts, and
T.
that Will be necessary to consider.
The opinion then cites the charges
against Hyde and Dimond of attempt
ing to "defraud the United States Gov
ernment out of large tracts of public
lands open TO selection under the laws
OF lieu lands included within the limits
Of the forest reservations established
and to be established in the States of
California and Oregon" The specified
charges in the indictment are then
cited.
Continuing the opinion states:
The defendants resist removal and insist
spiracy to detraud the United States within
Statutes. il Is well settled that in an ap-
plication for warrant of removal under
ton lOl4 OF the Revised Statutes it is the
iciency OF the Indictment where the applica-
tion for removal is based upon the indictment
alone. and II in such case the indictment does
not charge an ofense the warrant should be
refused. The hrst question then for consid-
erstion At this time is that which relates to
the sufhciency Of the Indictment DO the
facts set forth in the first count show that
defendants entered into a conspiracy TO defraud
IN ~. s,,liI ohieo OUT o. the ''e 10 any Of
II such is the true construction Of the in
dictment there can be no doubt that it suf-
charges defendants VI
spiracy TO defraud the United States out OF
the title TO the lands which IL might give
IN exchange for such fictitious titles. a patent
issued IN the name Of fictitious person con-
veys 70 title, it is not simply voidable but
The Indictment is certainly subject to very
severe criticism because OF lack Of pre- stscn
and sincleness in its statement of facts: but
] think that upon cons deraton Of all Of its
allegations the first count may be construed
charging in substance that the defendants
entered into a conspiracy To obtain from the
United States title to public lands situate out
side of forest reservations In exchange for
school lands within forest reservations and
in the names Of persons whose applica tioas TO
purchase were TO be supported by the false
and fraudulent affdavits referred to in the 81
dictinsut.
The court then points out that it was
the object Of the alleged conspiracy
TO enable the defendants TO obtain
perfect title TO certain public lands in
exchange for school lands situated in
forest reservations. TO which they held
only naked legal title" The law un-
der which the exchange of lands re-
ferred to was TO be made was then
quoted.
The court added that ito my mind il
is clear that the word owner as there
in referred to refers to one who holds
both the legal and equitable title to
patented lands" The opinion then says
that the defendants In combining together to |
obtain the title TO public lands Of the Jni.& |
States IN exchange for lands TO which thty
held only the naked legal title. the equitc b.. ,
title thereto being in the States OF California
and Oregon. conspired to defraud the Tinted |
states within the meaning of section 5i40 Of /
the Revised Statutes
The defendants also resist remova. upon
The ground that section 1014 of the Revised I
Statutes does not authorize the removal Of a |
defendant from judicial district of the /
United Ststes to the District OF Columbia for |
trial This question was presented in the cases
OF in re Buell.. Dill. 11s Fed. case No 2iO2 |
and in re Benson. 100 Fed 4s6 and II was |
held IN both that section 1O14 OF the Revised |
Statutes. when read in connection with other
statutes of the United States gives ample !.
arfhorftv such removal. and Jud1a Tfiio,