Los Angeles herald., 1909-10-01
WfLLBORN ENDS
RED TAPE GAME
IN u. S. COURT
MEN ACCUSED OF LAND FRAUDS
MUST STAND TRIAL
TECHNICAL POINTS MADE BY
DEFENSE oVERRULED
Judge Declares That Case Must Go
On, and the Jury is Called
Back to the Court
Room

The sanguine hopes of attorneys for
the men accused of land frauds in I'M
perial valley, that they might gain
their clients freedom by the interpo-
sition of technical objections, we're
dashed to the ground yesterday by
Judge Wellborn. The court showed in
number of rulings his firm intention
to hear the case on it's merits, and,
as far as consistent, to leave techni-
calities out of consideration. That the
blow was bitter one was evident
from the appearance of all engaged or
| interested in defense.
One of the strongest contentious of
the attorneys for the accused was
based on a point discovered and set
forth by j. n. Eshelman, district at
torney of Imperial county, the young
est lawyer in the case. Judge Well
born, in his decision overruling the
! objection, took particular pains to
comment graciously on the ingenious
manner in which the young attorney
had presented his point and no less
on his keenness in discovering 1t.
Techncality Is OverruIed
| This point was made on the ground
that, in a recent decision, Judge Well
! born himself declared an assignment
of desert land by the original entry
man to another person is unlawful.
Attorney Eshelman asserted that, as
all the charges in the indictment are
based on assignments, the indictment
itself charges the accused did some
thing it is technically impossible to do.
This point was argued and expanded
upon by Attorneys Eshelman Davis and
| MeserVe, but was overruled.
The technical objection that, since
the original surveys were found to be
faulty and were abandoned by the gov
ernment no figures based on that sur
vey could be introduced into the court,
lalso was rejected. Two other technical
objections presented Wednesday were
thrown out, but will be brought UP
again as the case progresses.
Shortly after the opening of the
morning session, Attorney Eshelman
asked leave to present an objection
that, in his estimation, would prove to
be vital. He then said in substance:
"In a case recently considered in This
court by your honor (the Hammers
case) it was ruled that entries made
on desert land are non-assignable. 1r
this Indictment a conspiracy is charged
against the defendapts. and in support
of the allegation. a number of over
acts are set forth. These overt acts
are nothing more nor less than the nj
ing in the land Office of annual proof:
of work done on u6SGl HiihSo'
Indictment Attacked
"But in each and every one of the
cases cited the proof was made, not
by an original entryman, but by an
lassignee. l therefore contend that, as
it is necessary that overt acts must
tend to the consummation of con-
sniracv in order to make the offense
indictable, this indictment is of NO
avail"
Amplyfying this statement, Attor-
| new Davis in the afternoon said: If
the court recognizes as the law of this
case that entries are non-assignable-'
The court-I will so rule.
Mr.. Davis-That being true, 1t seems
To me impossible to accept as official
the papers offered here in connection
with the annual proof on these as
signed entries without classifying the
land office officials as either ignorant
or corrupt. For, if that is the law,
then the acceptance by the land once
of such papers as are proposed 10 pc
submitted here and on which 1t is
evidently hoped to convict us of fraud,
was unlawful The land office athori-
ties are presumed to know the law, and
as far as this case goes, thelr taliure
| 10 recognize that which the court de-
clares is the law lays them liable to the
| categorical classification to Whlch L
referred.
Still Alleges Fraud
Mr.. I.awier-If the court please, the
act of the land office in receiving ana
according the annual proofs on those
| assigned entries may or may not nave
been lawful and binding, and still 1t
| would not affect this case. The tact
remains that-whether these assign
ments were legal or not-the ultimate
result was that the filing of these an
nual proofs did restrain and prevent
other persons from filing on these
| lands and did continue in possession
| the persons whom we allege We're
nlaced there through fraud of these
"Their overt acts in filing these annual
nroofs did deprive the government OF
| its rightful use and possession OF the
| lands in question, and to that extent
did tend to the contamination OF con-
| spiracy."
"Gentlemen: I have heard these long
argumentsfwith great deal OF patience
| because / have felt their Importance
in this matter Twish to state at TINS
| time, regarding the contention or Mr..
Eshelman that I heard him with great
| interest I admire the ingenlousness
of his argument and the keenness silat :
| enabled him to detect and to present
| co ably to this court the point he
makes. which is a new and important
one. I mention Mr.. Eshelman par
| ticularly because he is a young man,
| a comparative stranger among us. and
because it is nothing less than had
expected of him, after knowing. as
do, something of his brilliant record
in university.
Judge Makes Ruling
yBut I am constrained to- rule at
this time against the defense in all
these points. am convinced that
no matter what the legality of an as
signment of desert land may bet Is
a fact that the making of annual proof
on such an assignment and its ac-
ceptance by the land office in regular
form and order would certainly dis
possess the government and all other
persons of some rights, and certainly
to possession, and would tend to 50
favor claims of those who made such
proofs. I made the ruling in the Ham
mers case after very deep and pains
taking study of the question, and.
whatever may have been the practice
of the land office in the past. do now.