In Error, to the District Court of the United States for the District of Montana.

The plaintiff in error was indicted and convicted under Act Feb. 25, 1885, c. 149, 23 Stat. 321 (U. S. Cbmp. St. 1901, p. 1524), for unlawfully maintaining an inelosure of government land. After describing the land, the indictment charged that the defendant “did wrongfully and unlawfully maintain and control and cause to be maintained and controlled by him, the said Emil Birch-er, an inelosure of the said lands, consisting of a fence of posts and wires, which said fence then and there inclosed all of the said tract of land comprising an area of approximately 1,920 acres of land, said lands so inclosed as aforesaid being public lands of the United States. And he, the said Emil Bircher, at the time of so maintaining and controlling said fence and inelosure as aforesaid, has no claim or color of title made or acquired in good faith, or an asserted right to said lands by or under claim made in good faith with a view to entry thereof at the proper land office under the general laws of the United States to said lands, or any part or parcel thereof.”

The statute under which the indictment was found is as follows:

“Section 1. That all inclosures of any public lands in any state or territory of the United States heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inelosure the person, party, association, or corporation making or controlling the inelosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inelosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or contro] of any such inelosure is hereby forbidden and prohibited; and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any state or any of the territories of the United States without claim, color of title, or asserted right as above specified as to inelosure is likewise declared unlawful and hereby prohibited.”