commission is limited, and the auditor also, I made homestead entry on a quarter section in disbursements. RESTRIC 1. INDIANS 14 HOMESTEADS [Ed. Note. For other cases, see Indians, Cent. Decision of United States Supreme Court as to application of United States statute relating to Indian homesteads is binding on the courts of the state. [Ed. Note.-For other cases, see Courts, Cent. Dig. 332; Dec. Dig. 97(5).] Appeal from Circuit Court, Grant County; Frank McNulty, Judge. Suit by Clement F. Porter against John W. Steinmetz. From judgment for plaintiff, and order denying new trial, defendant appeals. Reversed and remanded. L. W. Crofoot, of Aberdeen, and Thad. L. Fuller, of Milbank, for appellant. Frank McNulty, of Aberdeen, for respondent. of the public domain in Grant county in the (a) There is only one question involved in the determination of this case, and that is, as concisely stated by appellant: "Did the act of July 4, 1884, which was not passed until after Owaykiduta had completely earned the title to his homestead, subject to the restriction of only 5 years upon its alienation imposed by the act of 1875, so amend that act as to extend that restriction to 25 years?" GATES, J. [1, 2] By section 15 of Act March 3, 1875, c. 131, 18 Stat. 420 (U. S. Comp. Stat. 1913, § 4611), the Congress extended the privileges of the Homestead Act of 1862 (Act May 20, 1862, c. 75, 12 Stat. 392) to Indians under certain conditions, with a proviso against incumbrance or alienation The trial court, following the decision of during the period of 5 years after date of the United States District Court for this dispatent. On April 28, 1879, Amos Owaykiduta, trict in the case of United States v. Hemmer, a Sioux Indian of the Sisseton and Wahpe- 195 Fed. 790, decided that the act of 1884 ton band or tribe, duly qualified so to do, did extend the period of restriction against For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes alienation and incumbrance to 25 years, and therefore that the contract with Steinmetz was a nullity. Upon appeal to the United States Circuit Court of Appeals in the Hem- mer Case the decision of the District Court was reversed, and the act of 1884 was held inapplicable to a case where the entryman had earned his right to the patent before the passage of the act of 1884. Hemmer v. U. S., 204 Fed. 898, 123 C. C. A. 194. In that case the Indian entryman had earned his patent "The act of 1884 applied to Indians then lo- cated on the public lands. Regarding Taylor simply as an Indian, those words might be con- sidered to be applicable to him; regarding the purpose of the act, which was to confer a bene fit, not confirm one, they did not apply to him, or to Indians in his situation, for he, and In- dians such as he, were the beneficiaries of the prior act, and he and other Indians, it may be, but certainly he, had substantially performed its conditions. What remained to be done, and could have been done before the act of 1884 was passed, was not much more than ceremony, Nor does the fact that the act of 1884 applied to such Indians as might then be located upon the public lands broaden it so as to include In- dians who were proceeding under the act of 1875. The rule is established that under acts of Congress concerning the public lands those are not regarded as such to which a claim has attached, though Congress may, if it be so ad- vised, exercise control over them. Hastings & Dakota Ry. Co. v. Whitney, 132 U. S. 357, 361, 364 [10 Sup. Ct. 112, 33 L. Ed. 363]; Hodges v. Colcord, 193 U. S. 192, 196 [24 Sup. Ct. 433, 48 L. Ed. 677]; Bunker Hill Co. v. United the act of 1884. Congress has undoubtedly by That decision is binding upon us and must control our decision. We must therefore hold that the act of 1884 did not apply to Owayki- duta's patent issued on February 19, 1887, and that on May 31, 1897, when he made the contract with Steinmetz for the land, there was no valid restriction upon him against the alienation or incumbrance of the land. The judgment and order denying a new trial are reversed, and the cause is remanded STATE v. SYVERSON. (No. 3948.) (Supreme Court of South Dakota. Aug. 29, 1. CRIMINAL LAW 1130(3)—APPEAL-REC- On appeal in a criminal case, appellant may not omit evidence from the record as not being material to his own theory of the defense, unless such theory has been unchallenged by the state, and otherwise must include the material evi- ' dence bearing upon the state's contrary theory, as well as that bearing on his own theory. [Ed. Note. For other cases, see Criminal On appeal, the state challenged the sufficien- cy of the statement of the evidence in the brief of appellant, on the ground that the evi- dence material to the theory of the state and bearing on the sufficiency of the evidence was was not material to the defense, and that they omitted. Appellant claimed that such evidence had stated all of the evidence material to the issues raised. Held, that the burden was not on the state, on motion to strike the brief, to bring before the court in its brief the record on appeal, where appellant relied on the in- sufficiency of the evidence, because of rules 6 relying on the insufficiency of the evidence, to and 7 (140 N. W. viii), requiring appellant, include the material evidence in his brief, and authorizing the state to insert in his brief evi- dence thought by it to be material. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2956; Dec. Dig. 1130(3).] 3. CRIMINAL LAW 1130(3)—APPEAL-REC- Under such rules nearly all the matter set forth by questions and answers, except where error is assigned upon the rulings on evidence, should have been put in narrative form, and questions set forth verbatim, with exceptions and rulings not assigned as error, should be eliminated and the evidence stated in narrative form, and the ruling and exception, instead of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes taking two lines of the printed record, should | but where such evidence is material upon a be condensed to one line, and instead of taking contrary theory, claimed by the state to be several pages by printing on a separate line the words "settled record" with the page num- the correct theory, it is the duty of appelber, the reference might have been made by lant in perfecting the appeal to include the simply giving the page number in parenthesis material evidence bearing upon the opposing and inserting it on the previous line, accompan- theory as well as that bearing upon his own. ied by footnote at the beginning of the brief, explaining that the figures in parenthesis re- We are of the opinion that the Attorney Genferred to the pages of the settled record. eral's contention is well founded. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2956; Dec. Dig. 4. CRIMINAL LAW [2] It is asserted by the Attorney General, 1130(3).] and many instances are pointed out, that 1130(3) STRIKING the appellant has omitted much material eviSTATEMENT OF FACTS-LEAVE TO REPRINT. dence bearing upon the issue raised by the The striking out of appellant's statement of appellant, viz., that the evidence was insuffithe case necessarily carried with it his assign- cient to justify the verdict. Appellant's ments of error, and, to make his argument intelligible in view of the necessary changes in counsel have not seriously disputed this aspage references, they should be reprinted, al- sertion, except to state that in their opinlowing the appellant 40 days in which to serve ion they have fairly stated all of the evia new brief. dence material to the issues raised. Rule 6 [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2956; Dec. Dig. 1130(3).] (140 N. W. viii) of this court, following chapter 172, Laws 1913, provides: 5. CRIMINAL LAW 1130(3)-RECORD-FORM. "Such brief shall contain, besides any citaThe practice, especially in a case involving a long record, of printing the statement of the case and assignments of error in one volume, designated as "Part I" and the argument in another volume, designated as "Part II," the paging of the second part being a continuation of that in the first part, is commended. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2956; Dec. Dig. 1130(3).] Appeal from Circuit Court, Kingsbury County; Alva E. Taylor, Judge. Emil A. Syverson was convicted of the offense of receiving a deposit after he had knowledge that the bank of which he was an officer was insolvent, and from the order denying his motion for a new trial he appeals. Statement of the case and assignments of error stricken out, and appellant given 40 days within which to serve and file a new brief to conform to the rules of the Supreme Court. Warren & Warren, of De Smet, Sherin & Sherin, of Watertown, and Null & Royhl, of Huron, for appellant. Clarence C. Caldwell, Atty. Gen., for the State. tion of authorities and argument, a clear, concise, and condensed statement of the contents of such part or parts of the settled record as may be necessary to present fully to this court the errors assigned and to show that they are prejudicial to appellant, setting forth so much thereof only as is necessary to a full understanding of all the questions presented to this court for decision; provided, however, that whenever the appellant shall seek to rely upon an assignment to the effect that the evidence was insufficient to support the verdict, finding, or other decision, the said statement in his brief contains a statehe shall cause it to affirmatively appear that ment of all the material evidence received upon the trial." Rule 7 (140 N. W. viii) of this court provides: "If the respondent shall deem the statement of the contents of the settled record as contained fair, he may insert in his brief such further or in the appellant's brief to be imperfect or unadditional statement as he shall deem necessary to a full understanding of the questions presented to this court for decision." It seems to be the understanding of appellant that, having made the assertion in his brief that all of the material evidence appears in his brief, it is the duty of the On Motion to Strike Out the Printed Record. state to print such additional parts of the record as the Attorney General deems maGATES, J. On this motion the state asks terial. That is ordinarily the rule, and, exthat there be stricken from the printed brief: cept in a direct challenge like this, it is the (a) The statement of the case; (b) the as-rule. That rule, however, is not intended to signments of error; (c) the assertion that the statement of the case prepared by appellant contains all of the material evidence received upon the trial. shift from appellant to respondent the burden of bringing before this court the record on appeal. We are of the opinion that the appeal record in this case does not fairly state the material evidence received upon the trial, and that upon the record as it stands the sufficiency of the evidence to sus [1] It is asserted by the Attorney General that much material evidence is omitted from the printed record bearing upon the correctness of the rulings of the trial court up-tain the verdict ought not to be considered on the reception and exclusion of evidence. by this court. Appellant's counsel admit that they have [3] The Attorney General contends that left out much evidence, but contend that such of the evidence as is printed is taken such omitted portion was not material to verbatim from the settled record without any their theory of the defense. If appellant's attempt at condensation. Appellant's countheory of the defense were unchallenged; if sel say that an examination of the evidence the state accepted that theory-then of will disclose that it is as succinctly stated course appellant's omission would be proper, by question and answer as it is possible to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes state it. We think appellant's counsel are [ [5] In this connection we may observe that in error. As an illustration, the matter on appellant's counsel have followed the compage 63 of appellant's brief could have been mendable practice, especially in a case incondensed to less than a half page. So, too, volving a long record, of printing the statethe matter on pages 97, 98, and 99 could have ment of the case and assignments of error been printed in half the space. We do not in one volume, designated as "Part I" and think there is any reason why nearly all the argument in another volume, designated of the matter set forth by questions and an- as "Part II," the paging of the second part swers, except where error is assigned upon being a continuation of that in the first part. the rulings on evidence, should not have been put in narrative form. WHITING, J., not sitting. Again, many questions are set forth verbatim with the exceptions and rulings, and such rulings are not assigned as error. These should be eliminated, and the evidence stated in narrative form. Again, in almost every instance the ruling and objection take two lines of the printed record, thus: "The Court: Overruled. In re POLLEY. (No. 4013.) (Supreme Court of South Dakota. Aug. 29, 1916.) 1. ATTORNEY AND CLIENT 52-DISBAR MENT PROCEEDINGS-AMENDMENT OF PETI- Where, in disbarment proceedings, the accuser sought to amend his petition by adding This should properly be condensed to one new and independent charges not investigated line, thus: "Objection overruled. Defendant excepts." Again, 236 lines, or more than 8 pages, are consumed by printing on a separate line the words, "Settled record," with the page number. These references might have been made by simply giving the page number in parenthesis and inserting it on the previous line, accompanied by a footnote at the beginning of the brief, explaining that the figures in parenthesis refer to the pages of the settled record. Much other unnecessary matter is printed verbatim which we need not point out at this time. A conscientious observation of the admonition contained in rule 6, "Preserve everything material to the question to be decided and omit everything else," ought to enable appellant's counsel to condense the record very materially. Again, the Attorney General complains of duplications in the record or portions of the testimony, and also many erroneous references to the pages of the settled record. Appellant's counsel concede these last-mentioned errors, and say that in a case of this importance they do not feel like asking the court to permit corrections by interlineations and erasures, and ask leave to reprint the record within a reasonable time. [4] The striking out of the statement of the case will, of necessity, carry with it the striking out of the assignments of error. To make the argument intelligible, because of the necessary changes in page references, that should also be reprinted. For the reasons given the printed statement of the case and the assignments of error are stricken out, and the appellant is given 40 days within which to serve and file a new brief to conform to the rules of this court. by the Attorney General, it was within the discretion of the referees to allow the amendment, and their order to the Attorney General to investigate such charges, and, pending such investigation, ruling denying amendment and dismissing proceedings because of failure of evidence, was not an abuse of discretion. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 69, 70; Dec. Dig. 52.] 2. ATTORNEY AND CLIENT 52-DISBARMENT PROCEEDINGS-AMENDMENT OF PETITION-DISCRETION OF COURT. In such case, however, the new charges ought not to be disregarded by the court, and it will treat the proposed amendment as a new petition. 52.] Client, Cent. Dig. §§ 69, 70; Dec. Dig. AND CLIENT 59-DISBAR- Under Laws 1911, c. 85, § 6, providing that the accused in disbarment proceedings can recover his necessary disbursements from the accuser, if the charges are without probable cause and with improper motive, no recovery therefor can be had, if there is no finding of improper motive. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 76; Dec. Dig. 59.1 Application for disbarment of Samuel C. Polley, an attorney. Report of referees, finding charge groundless, affirmed, and judgment so entered. Clarence C. Caldwell, Atty. Gen., and Byron S. Payne, Asst. Atty. Gen., for prosecution. A. K. Gardner, of Huron, for respondent. WHITING, J. There was filed in this court the sworn petition of one Joe Kirby, a duly licensed attorney of this state, in which it was charged that Samuel C. Polley, formerly secretary of state in and for this state, and at the time of the filing of such petition and now a member of this court, while acting as such secretary of state had been guilty of The state being the opposing party, no criminal offenses involving moral turpitude, terms will be imposed. in that he willfully, wrongfully, and unlaw For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fully did ask, promise to receive, and re- certain additional charges against the accusceive, a gratuity and reward in the sum of ed. The new charges in no manner related $100 from a certain party, in consideration to the transaction referred to in the original for appointing such party to a clerkship un-accusation, but at least one of such charges der the laws of this state, and in that he was such that, if true, it would tend to show did make such appointment. The petition that at one time the accused was unfit to be prayed that this court proceed to investigate a member of the bar of this state, and might, such charges, and that this court revoke the in connection with proof of other facts, show license to practice law in this state held by present unfitness. The amendment was accused. The accused forthwith answered, sought at the opening of the trial. It was waiving any investigation by the Attorney conceded that these accusations had never General as provided by chapter 85, Laws of been called to the attention of the Attorney 1911; consenting that such petition be treat- General so as to permit of an investigation ed as the complaint herein; denying the ac- by nim into their truthfulness. The accused cusations contained in such petition; and had received no notice that such charges charging that such accusations were made would be preferred. Neither was there any without probable cause, and were influenced explanation of why such accusations were by improper motives. The issues thus raised not contained in the original petition. The were referred for trial and report thereon to referees were of the opinion that certain of a board of three referees, agreed upon by the these charges were not presented in such a accused and the Attorney General and ap- manner, or were not of such a nature, as to pointed by the court. The referees found the demand consideration by them, but that one charges preferred to be groundless; that the was of such a nature as warranted further accuser did not, prior to the filing of the consideration. They ruled that before this petition, inquire of the party from whom ac- one should be so considered, it should be incused was charged to have received the $100 vestigated by the Attorney General for the as to whether or not "he had paid, or agreed purpose of determining whether he deemed to pay, or give any gratuity or reward, the matter therein referred to worthy to be * to the respondent or any one else, for presented to such referees; that, if the Atthe said appointment to such clerkship"; torney General, after such investigation, conthat two certain letters written by accused to sidered such matter worthy to be presented one R. O. Richards, and which under the evi- to such referees, he might present a formal dence formed the sole basis for the charges accusation embracing such matter; and that preferred, “in no way warranted the conclu- the accused might have a reasonable time to sion contained in said charges so filed by said answer thereto. The Attorney General advisJoe Kirby against the respondent herein"; ed the referees that it would take ten days and that "said accusations were so made and to make such investigation. This matter was filed by said Joe Kirby without probable then passed, and the trial of the issues raised cause." The referees concluded that judg- on the original petition proceeded with. At ment should enter dismissing said petition the close of such trial the referees, after an and charges upon the merits, and that the nouncing that they should find the charges court itself should, upon motion and after contained in the original accusation not susnotice to the accuser, determine "what, if tained by evidence, stated: any, costs or disbursements should be taxed against the accuser." The matter is now before us upon a motion for judgment in conformity with the report of the referees, the accuser having been required to show cause why, as a part of such judgment, judgment in favor of the state should not be entered against him for the disbursements incurred on behalf of the prosecution, and judgment in favor of the accused should not be entered against him for the accused attorney's necessary disbursements in this pro-investigate the charge contained therein was ceeding. * Answering such order to show cause, the accuser makes no claim that there was evidence sufficient to sustain the charges originally preferred against the accused. A transcript of the proceedings had before, and the evidence received by, the referees is made a part of their report. From such transcript it clearly appears that no evidence was offered which expressly, or by the remotest inference, tended to prove such charges. [1, 2] But the accuser complains because the said referees did not allow him to file "And in view of the case as it stands, the proposed amendment will be denied, and the proceedings dismissed upon the merits." We are of the view that, even though each and every one of the additional charges sought to be preferred were such as, if true, would show accused unfit to be a member of the bar of this state, the accuser was not wronged by any ruling denying an amendment of the original petition. To refuse an amendment until the Attorney General could certainly no abuse of discretion. At the time the amendments were offered the referees were bound to presume that there might be some evidence offered which, in some degree at least, would tend to show unfitness of the accused to remain a member of the bar of this state. But when no such evidence was offered there was left nothing to the original charge, and the referees correctly ruled that, "in view of the case as it stands, the proposed amendment will be denied." To allow an amendment was a matter within the discretion of such referees. There certainly |