The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1904-03-30

interrupted with a question that was
at once taken by all in the courtroom
as showing his agreemenB with the
Governments position. He said:
Under the words of the indictment specify
ing the parcels the defendants are charged
with conspiring to obtain from the State by
fraud three methods Of alleged fraud set
forth. May It not be that in the case
nlent all three OF these methods were used
to obtain POSSESSION from the States? May
not one section or quarter section in the tract
have been obtained on a fictitious name an
other by using the name OF a man not quail
fed 10 buy and still another part of the
tract by using the name OF who. al
though qualified had no intention OF settling
upon the land2
That is just what we allege these
defendants did" replied Heney They
object that the indictment is defective
because it fails to set forth. in each of
the thirty-four counts. which method
was used. But that was not necessary.
The indictment simply charges that the
defendants adopted these three methods
of obtaining school lands fraudulently.
in order to. have them included in the
reservations and then exchange them
for the thirtyfOur tracts of outside
lands belonging to the Government"
Heney closed by citing cases to show
that the Governments titles obtained
from the defendants would not stand
against a suit by California or. Oregon.
Then. after offering in evidence the
bench warrant from the Supreme Court
Of the District of Columbia. he rested.
Schlesinger and Wheeler of defendants
counsel vigorously objected to the war
rant. the latter declaring that it had
been issued by a court without juris-
diction
The Commissioner brushed the whole
matter aside with the significant re-
mark: 4 do not regard the warrant
as very material, but win admit it, AS
at present advised ! am unwilling to
go into the question of the courts
jurisdiction. 1t is not my business to
interfere with a superior tribunal
The rest of the day was occupied by
McEnerney and Wheeler in replying TO
Heney. Wheeler ha6 not concluded
when o'clock brought the adjourn
ment. and he wifi continue this MORN
ing at 1890.
AIcENERNEY'S ABLE PLEA.
McEnerney made a fierce attack on
Heney's positions, repeating in the
main arguments that had been set
forth by his associates. SchIesinger and
Knight. on Monday, but driving them
home with great force. He further ar
gued that California and Oregon not
having attacked the Governments title
TO the lands decided to it by the defend
ants, that title was good, and therefore,
that every act alleged in. the first
thirty-four courts of the indictment
was an entirely lawful act, because the
Government had not been defrauded of
any land. If any fraud had been com
mitted it was against those States.
Replying to- a question by Heney,
counsel made this remarkably frank
statement of the position taken by the
defense:
We hold that when a man conveys land
within a reservation to the Government In
exchange fors land selected outside the reserva-
tieu the transaction IS complete when The
Government accepts IL and cannot be at
tackled no matter whether the land within
the reservation has feen acquired by fraud
orr not
p McEnerney also conterided that the
indictment was without force here as
an indictment. but was to be examined
as any other bit of evidence. He then
attacked it as failing to make a pre-
sumptive case against the defendants,
ayd closed by citing cases to support
the defendants contention that the
Government is bound to SUPPORT the
indictment with other evidence. The
same line Of argument was carried on
by Wheeler, who again questioned the
jurisdiction of the court at Washing
ton and was reminded by the Commits
sioner of his wish not to consider that
matter