CERTIFICATE OF DIVISION IN OPINION FROM THE DISTRICT OF CALIFORNIA.
MR. JUSTICE MILLER delivered the opinion of the court.
This case also comes before us by virtue of a certificate of division in opinion between the judges holding the Circuit Court of the United States for the District of California, upon an indictment against George H. Perrin, John McNee and John H. Benson for conspiracy. The indictment consists of three counts. They set out, so far as we can gather from the confused statement, that the three defendants entered into a conspiracy with some one else, to the jurors unknown, to defraud the United States of a large sum of money, to wit, $492; that in pursuance of said conspiracy they procured a contract to be made between George H. Perrin, then a deputy United States surveyor, and William H. Brown, surveyor general for the State of California, for the survey of certain township lines; that said Perrin produced a fraudulent, fictitious and pretended survey of the lands described in that contract, and caused fictitious and fraudulent field-notes of said pretended survey to
be made and returned to the United States surveyor general; whereas, in point of fact, no such surveys had been made, and said field-notes were utterly false and fictitious. Wherefore it is alleged that in this manner the said Perrin, McNee and Benson fraudulently and corruptly conspired and agreed together to defraud the United States of the sum of money aforesaid.
The second count attempts to recite the same contract and the same pretended survey and field-notes, and that by these false documents and pretences William H. Brown, the United States surveyor general, was deceived and induced to certify the sum accrued to and earned by said Perrin.
The third count, in addition to these charges, adds that the false and corrupt field-notes were accompanied by a wilful and corrupt oath and affidavit that they were all true, and that Perrin had marked said corners and established said lines in the specific manner described in said field-notes, when in truth and in fact he had not in his own proper person made any actual survey of these lines at all.
To each of these counts there was filed a demurrer setting up thirty grounds for its support. Upon the argument of this demurrer the judges certified seven questions as regards each of these counts, upon which they differed in opinion. As these are the same in regard to each count, those relating to the first count will be stated, as follows:
"1. Do the facts stated in the first count of the indictment constitute an offence under section 5440 of the Revised Statutes as amended in 1879, 1 Supl. Rev. Stat. 484, and section 5438 of the Revised Statutes?
"2. Are sufficient facts stated in the first count of the indictment to make a good count under sections 5440 and 5438 Revised Statutes; or under section 5440 alone; or under section 5440 in connection with any other provision of the statutes?
"3. Does the first count of the indictment sufficiently describe an offence under sections 5440 and 5438, or any other provision of the Revised Statutes, or under section 5440 alone?
"4. Are the means by which the parties ...