The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-03-03
HE HOLDS them.
Judge Pollock Decides Motion in
Land Frauds.
Relieves Defendants on One Of
the Charges.
MUST STAND TRIAL.
SubOrnation of Perjury Indict-
ment to Be Heard.
Text of Decision on the COnspir-
aey Charge.

IN the United states -UlStItCL SCtA-
this morning, in the matter Of the IN
dictments preferred by the recent spe-
cial grand jury against j. 2. Bilby.
James H. Drain and L. c. jenkins, all
Of Quitman, Mo, for alleged frauds
committed in obtaining possession of
government land, Judge Pollock sus-
tanned the demurrer fled to the charge
of conspiracy and overruIed the one
relating to subornation of perjury
BiIby. Drain and jenkins were in
dicted by the federal grand jury. which
sat in Topeka last November and con-
sidered evidence secured by Col A. R.
Greene. special agent of the depart
ment OF the interior. J. e. Bilby' s
ia theT is considered the richest man of
Missouri. With his sons he is in the
cattle business. J. z. Bilby one son,
and L. c. jenkins and James H
Drain, two of his employees, are
charged with having conspired to OBJ
tain land in Logan county, and of
having secured it by perjury, OIL. get
ting others to perjure themselves for
pay.
Judge Pollock held in sustaining
the demurrer to the charge. Of con-
spiracy, that its nature was not fully
set forth; that the manner in which
the fraud was to be practiced was not
sufIiciently delineated, and that the
overt acts committed cannot be looked
10 In aid of sustaining the charge.
The court oVerruled the demurrer to
the complaint of subornation of per
jury, on the grounds that the facts IN
the matter are well established and
clearly set forth IN the Indictment
The court stated that the Indictment
might have been more carefully drawn,
and the place of the offense more
strictly pointed out, yet that these
errors are excusable
Judge POllock's decision relative to
the demurrer to the charge of CON
splracy which he sustained follows:
me Indictment in the first count in
substance charges defendants within
the Jurisdiction of the court on the 9Th
DAY of September, 1905 did then and
there unlawfully conspire. confederate
and agree together with divers other
persons to the grand Jurors nm
knoWn, TO defTaud the United States
out of the possession Of certain lands
describing the same fully. and in apt
and appropriate language charges one
or more of the defendants to have
done certain overt acts in consumrna-
ton OF the conspiracy to defraud the
government thus entered upon.
In the second count the indictment
charges that within the jurisdiction Of
the court on the same day the defend
ants did then and there unlawfullv
| conspire, confederate and agree to-
gether with divers other persons to the
grand jurors unknown to defraud
8
titles Of certain lands fully described
therein. and further charges one or all
OF the DEFENDANTS in pursuance of such
conspiracy to have done and perform
ed certain overt acts looking towards
the contamination of the conspiracv
/ charged. fully setting forth the nature
Of the acts SO done.
Defendants demur to the Indictment
Ihe point made against the indict-
/ ment by defendants is that the nature
Of the conspiracy entered into is not
/ sufficiently charged in this. that the
manner In which the fraud to be prac-
/ uced upon the government as agreed
/ upon was to be accomplished and the
/ means to be employed by the conspira-
/ tors IN its preparation are not set
fOfth, ana that the overt acts charged
/ 70 nave been done in pursuance of the
/ conspiracy can not be looked to in aid
/ OF the charge of unlawful cOnsDirac v
Therefore that the Indictment is bad.
On the contrary it is contended bv
/ the government that the entire fndict-
I ment may be looked to in order to as
/ certain its Sufnciency and the nature
1 OF the charge against the defendants
/ and its overt acts charged to have been
cone III pursuance to the conspiracy al
/ leged may be considered in determining
/ the nature of the conspiracy charged
/ to defraud the government, and the
/ means employed towards it's occom-
/ pI1shment, and when so considered. the
/ Indictment fully apprises the defend
ants Of the exact nature of the charge
against them and is sufficient.
1t seems to me a consideration of the
/ statute itself and the application Of
well settled principles of criminal plead
/ ing viii be sufficient to determine the
! controversy thus raised. It is quite
clear from the language employed in
/ the act, and well settled by the adjudi-
| Gated cases arising hereunder, that the
! gist of the offense charged is the IN
! lawful conspiracy entered into to de-
/ fraud the government. True, the Of
,7e,A5
act is done by one or more Of the CO.
I conspirators looking toward the con-
4 summation of the scheme to defraud
4 the government heretofore entered into
/ as charged in the Indictment and that
notwithst anding the conspiracy to de-
4 fraud charged might be fully proven by
/ the government as alleged, yet no Of
( tense would be made out. unless follow
4 ed by the further proof Of the doing
] of some overt act charged to nave been
! done in pursuance OF the conspiracy,
and tending toward the execution OF
( the conspiracy as charged IN olnef
! words the statute requiring not alone
/ the establishment of the conspiracy
/ charged but also a proof Of some overt
I act done toward the accomplishment
4 Of the conspiracy to make cut tne com
l pleted and punishable ofense, 1t fol-
( lows of necessity, I think, the nat B OF
the conspiracy entered into for the pur-
/ pose of defrauding the government, the
/ means by which such fraud is to be
perpetrated, and the manner in which
such means are to be used, must be set
I forth with certainty IN charging the
| unlawful confederacy entered into. that
/ the court may thereby determine that
/ such a conspiracy as is prohibited by
the statute Is charged. To this effect
/ T believe. are all the controlling decis-
ions arising under the act in question.
To my mind the rule established Is not
! without the best reason II It's support a1ld
/ on this ground, IN making the proof OF
the prohibited confederacy TO defraud the