This case was heard at a previous term of this court, and a decision rendered February 3, 1908. The case is reported in 161 Fed. 702 , 88 C. C. A. 562 , where the facts are fully stated. On January 6, 1908, the Supreme Court of the United States rendered a decision in the case of Williamson v. United States, 207 U. S. 425 , 28 Sup. Ct. 163, 52 L. Ed. 278 , reversing the judgment of the lower court, and remanding the case for a new trial for errors of the trial court in admitting certain testimony and instructing the jury upon the law. The plaintiff in error thereupon filed a petition for a rehearing in the present case, alleging that in the case in the Supreme Court Williamson was charged with identically the same offense as the plaintiff in error in this case, and that the law in that case is applicable to the facts in this case. The rehearing was granted, and the case has been considered in the light of the decision of the Supreme Coitrt in the Williamson Case.

The charge in the indictment in the Williamson Case, as in the indictment now before the court in the present case, is, in substance, that the defendants had entered into an unlawful conspiracy, combination, and confederation on a date and at a place named, within the district where the indictment was found, to commit an offense against the United States; that is to say, to unlawfully, willfully, and corruptly suborn, instigate, and procure a large number of persons to commit the offense of perjury in the said district by taking their oaths before an officer, in cases where a law of the United States should authorize an oath to be administered, that they would declare and depose truly that certain declarations by them to be subscribed -were true, and by thereupon, contrary to such oaths, stating and subscribing material matters contained in such declarations and depositions which they should not believe to be true; that is to say, to suborn, instigate, and procure the said persons respectively to come in person before such officer, and, after being duly sworn by and before such officer, to state and subscribe under their oaths that certain public lands of the said United States open to entry and purchase under the acts of Congress approved June 3, 1878, *743 and August 4, 1892 (Act June 3, 1878, c. 151, 20 Stat. 89 ; Act Aug. 4, 1892, c. 375, 27 Stat. 348 [U. S. Comp. St. 1901, p. 1545]), and known as timber and stone lands, which those persons would then be applying to enter and purchase in the manner required by law, were not being purchased by them on speculation, but were being purchased in good faith to the own and exclusive benefit of those persons respectively, and that they had not directly or indirectly made any agreement or contract, in any way or manner, with any other person or persons whomsoever, by which the titles which they might acquire from the said United States should inure in whole or in part to the benefit of any person except themselves, when in truth and in fact, as each of the said persons wmuld then well know, and as they, the said defendants, would then well know, such persons would be applying to purchase such lands on speculation, and not in good faith to appropriate such lands to their own exclusive use and benefit respectively, and they would have made agreements and contracts with other persons by which the titles which they would acquire from the said United States in such lands would inure to the benefit of persons except themselves; the matters so to be stated, subscribed, and sworn by the said persons being material matters under the circumstances, and matters which the said persons so to be suborned, instigated, and procured would not believe to be true.

It was provided in section 2 of the timber and stone act of June 3, 1878, c. 151, 20 Stat. 89 (U. S. Comp. St. 1901, p. 1545), referred to in the indictment:

In section 3 it was provided:

To give effect to the provisions of this act by regulations as provided in section 3, the Commissioner of the General Land Office incorporated in a circular issued July 11, 1899, instructions showing the manner of proceeding to obtain title to public lands under the homestead, desert land, and other laws, and in section 11 of the circular it was prescribed as follows:

In the Williamson Case the Supreme Court held:

The trial court had admitted evidence of the making of the final proofs, as provided in section 3 of the act of June 3, 1878, and section 11 of the circular of the Commissioner of the General Land Office. These final proofs embraced sworn statements made pursuant to the requirements of the regulations adopted -by the Commissioner of the General Land Office, declaring the bona fides of the applicant, and that at that period he had made no contract or agreement to dispose of the land.

The trial court had also instructed the jury that the indictment covered perjury in the matter of final proofs, and that they might convict if satisfied by the evidence beyond a reasonable doubt that the de *745 fendants Intended that the persons who might be procured or induced to make entries of lands should willfully and deliberately commit perjury in particulars stated at the time of making their depositions, or sworn statements, when they made their final proofs before the United States commissioner, and in effect charged that a sworn statement made at the time of final proof concerning the purpose for which the land was sought to be purchased, etc., would constitute perjury, if the oath so taken, although not expressly embraced in the statute, was required by the regulations of the Commissioner of the General hand Office, because .such regulations had the force and effect of law.

The Supreme Court held that an entryman who had made his preliminary sworn statement concerning the bona tides of his application and the absence of any contract or agreement by which the title which he might acquire from the United Stales would inure to the benefit of any person except himself is not required to make an additional oath to such facts oti final proof, and a regulation of the Commissioner of the General hand Office exacting such additional sworn statement at the time of the final hearing is invalid. The court was accordingly of the opinion that error was committed by the trial court in admitting the filial proof as evidence tending to show the alleged illegal purpose in the primary application for the purchase of the land, and that error was also committed in instructing the jury that the evidence covered, or could cover, the procurement of perjury in connection with the final proof, and that the jury might base a conviction thereon.

The indictment in the present case charges Henry W. Miller, Frank F. Kincart. Martin C. Iloge. and plaintiff in error, Charles Nickell, with a conspiracy to suborn a large number of persons to commit the crime of perjury in the entry of timber lands. As before stated, the offense charged is, in substance, the same as in the Williamson Case. The defendants Miller and Kincart pleaded guilty. The defendant floge and the plaintiff in error pleaded not guilty, and were tried and convicted. The facts in some important particulars differ materially from the facts in the Williamson Case, and it is with respect to such differences that the questions upon this rehearing are to be considered.

No final proofs were made, and no testimony was introduced fending in any way to show or to give the jury the impression that final proofs had been made by the entrymen in this case. The scheme of the entrymen, Miller and Kincart. was to find a large number of persons to make entries on timber lands in Southern Oregon, and induce such people to pay them large locating fees in cash, which were fixed at first at $125 each. Subsequently, it was agreed that the fees should he ¥<>0, and the balance to be paid when the entrymen made final proof; later the locating fee was reduced to $25 each, the balance to he paid upon final proof. These fees were to be divided between Miller and Kincart. The defendant, Nickell, was United States commissioner at Medford, Or., and the proprietor of two newspapers — one at Medford, and the other at Jacksonville. The sworn statements of the entrymen required by the act of June 3, 1878, were to be taken before him, and the notice of the application advertised in his Jacksonville paper. His fee as commissioner was $2.50 for each swprn statement, and $10 for advertising each notice of application. These *746 charges were to be paid by the entrymen. Miller and Kincart applied to Nickell to secure part of the advertising- charge. They first wanted $4 out of each notice, but it was subsequently agreed that they should receive $2.50. Under this agreement, Nickell testified that 50 or 60 sworn statements were taken before him, and about 40 notices published in his paper. To induce the entrymen to pay the location fees, Kincart was to act as timber “cruiser” — that is to say, he was to select the lands for their timber value — and Miller represented himself as the agent of a company which would furnish the money required to make the entry of the land, and upon the assignment by the entrymen of the receiver's receipt and the execution of a quitclaim deed the company would pay the entrymen for the land upon the basis of 40 cents for 1,000 feet for the timber standing upon such lands. The entry-men agreed to make, and did make, preliminary proofs before the plaintiff in error as United States commissioner, pursuant to this verbal agreement; and there is evidence tending to show that the plaintiff in error knew of this verbal agreement at the time he took the preliminary proofs, and promoted the scheme.

This agreement was the inducement to make the preliminary proofs. It was the‘moving cause that brought them before the commissioner to take the required oath for such lands, and, notwithstanding, each entryman declared under oath before the commissioner that he had not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever by which the title which he might acquire from the United States should inure, in whole or in part, to the benefit of any person except himself. This was precisely what he had done, and constituted the perjury which the defendants are charged in the indictment with having conspired to procure the entrymen to commit..

But it appears that Miller and Kincart had a blank form of a printed agreement (Exhibit No. 1), which it was proposed to have modified. This form of agreement, modified as proposed (Exhibit No. 2), was-taken to Nickell, who carried on a job printing office in connection with his newspapers, and these blank agreements were printed in his office for use with the entrymen. This agreement (Exhibit No. 2), executed by the entryman, and by Miller for a company which- he claimed to represent (the Emmetsburg of New Zealand), purported to obligate the company to pay to the entryman 40 cents per thousand fee for the timber on a described quarter section of land for which the entryman was to use his right of entry, and upon final proof he was to convey the land to the company, and also assign the receiver’s certificate and execute a quitclaim deed. This form of agreement was executed by the entrymen, and by Miller for the company he claimed to represent, and was introduced in evidence without objection. It was, however, not open to objection. It was executed by the entrymen immediately after making the preliminary proof, and was a part of the transaction. It was an admission in writing that prior to the preliminary proof the entrymen had made the- verbal agreement to convey the land upon making final proof and stated the terms of the agreement.

But it is assigned as error that the court instructed the jury in effect that this assignment was illegal in itself, and forbidden by stat *747 wte; and that the plaintiff in error, having knowledge of this agreement and acquiescing therein, would become a member of. the'conspiracy, even though he had no knowledge of any previous oral agreement between hliller and Kincart and the entrymeu. It is this general feature of the court’s instructions that plaintiff in error contends is contrary to the law of the Williamson Case; but. we find no such instructions in the record, and none from which such an inference could properly be drawn. In considering the court’s instructions, it must be remembered that np final proof was made in any case. The transaction with the government consisted in making the preliminary proof, and that alone, and the question for the jury to determine was whether, when this preliminary proof was being made, the entrymeu at that time had made an agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title he might acquire from the United States should inure, in whole or in part, to the benefit of any person except himself. Manifestly, the written agreement described as “Exhibit No. 2,” executed immediately after the preliminary proof had been made, could have no bearing in the case except to show that the preliminary proof had been made in pursuance to an agreement, the terms of which the entryman admitted were contained in Exhibit No. 2. This was clearly stated to the jury by the court in one of its instructions, defining the word “agreement.” The court said:

In other words, what consideration were the jurors to give to the alleged verbal agreement made prior to the preliminary proof? They were told in this instruction that the agreement need not be in writing; it need not be of sufficient formality or of a nature to be enforced in a court of law. Then what consideration were the jurors to give to Exhibit No. 2? They were told that whether or not it was an agreement or a contract that could be enforced in a court: of law was immaterial — the material question was whether, when the applicant, was about to make his sworn statement to enter the land (the preliminary proof), there was an agreement or understanding had between the parties in respect to the conveyance of the land.

Tint the plaintiff in error refers to the following in the transcript of record:

It is contended that it appears from this statement that there were some entrymen who signed contracts who had not made any verbal contract with Miller prior to their filing; that the court did not make to the jury any distinction between the contracts made after and the contracts made before the filings, but permitted the jury to find the defendant guilty upon the theory that the contracts in writing, made after the filing and without prior oral agreement, were illegal and forbidden by the statute. We have seen that the court did clearly make a distinction in defining an “agreement,” under the statute, and did not permit the jury to be in error upon that question; and. with respect to the substance of the offense, the indictment charged that the conspiracy was to suborn “a large number, to witj one hundred, other persons to commit the offense of perjury.” It follows that if the proof shows that most of the entrymen — that is to say, any number— made a contract prior to their filing upon land, agreeing to transfer the land upon final proof, the, evidence was sufficient to establish the charge made in the indictment, and there was no error in the instruction to the jury as to its scope.

The court instructed the jury that:

It is objected that under this instruction good faith did ndt terminate with the initiation of the claim, and that, from other parts of the instruction, good faith consisted, among other things, in not making any contract to convey the entryman’s interest in the land until after the receiver’s certificate was issued. The instruction quoted is part of a general instruction relating to the acquisition of public lands under the timber and stone act, in which the court instructed the jury that:

On the other hand, the jury was instructed that:

The court further instructed the jury:

These instructions were entirely correct as applied to the evidence before the court. Had there been evidence tending to show that the defendants had conspired together to suborn persons to commit perjury with respect to the making of final proofs, as was shown in the Williamson Case, then there might be some basis for a criticism of these instructions on the ground that they were too general; but upon the evidence in this case there is no substantial ground for objection. The court correctly stated the law applicable to the facts before the court, and the jury could not have been misled as to the application of the law to the facts in the case. It follows that, after carefully considering the record in this case in the light: of the Williamson Case, we find no error in the proceedings.

The judgment of the Circuit Court is therefore affirmed. ,