128 F. 346 | 2d Cir. | 1904
Lead Opinion
The accused’s route was known as “No. 21,” and included the rectory of the Church of the Most Holy Redeemer. In order to make a test of the faithfulness of the carrier on that route, two post-office inspectors prepared two decoy letters. Each of them contained two Sr bills, of the variety known as “silver certificates,” specially marked by the inspectors, and folded np in a double sheet of note paper, on which was written a request to be admitted to membership in some church society, and the statement that the money was for the same, signed with a fictitious name and address, the whole inclosed in an envelope, addressed “Rev. Father Rector,
The testimony left it doubtful whether the two letters were originally placed in the pigeonhole assigned to the accused or the adjoining one assigned to Kiechlin. Brucher testified with great positiveness that he put them in Bromberger’s boxes. “I went there,” said he, “with that intention, and am positive that I put one of those two letters in the box marked 21 in the first distributing case to the right, and the other in the box or "pigeonhole marked 21 in the second distributing case to the right. * * * I am positive I did not put them in Kiechlin’s box. There can’t be any doubt about it.” He further testified that from some convenient position he thereafter stood and uninterruptedly watched the boxes in which he had placed the letters for about 20 minutes, until he saw the accused come to the cases and “skin” those two boxes. On the other hand, Kiechlin
The accused testified that he received one letter only, the one he delivered at its address. He also introduced testimony to show that about 1 o’clock on the day in question a letter carrier other than himself, but who could not be identified, paid with a $1 bill for a purchase of tobacco at store No. 108 Avenue B, and that a number of letter carriers come to that store every day to make purchases. When the person in charge at the store, at the request of the inspector, searched in his cash register for and found the marked bill, there were other dollar bills in such register.
The evidence pointing to the conclusion that the accused received a letter which he did not deliver, and that he appropriated one of the dollar bills contained therein to the purchase of the tobacco within a couple of hours after receiving it, although circumstantial, fully warranted the verdict of the jury, and we find no force in the contention of plaintiff in error that the court should have advised the jun-to acquit upon the theory that the evidence was insufficient to establish guilt.
Of the 23 assignments of error it will not be necessary to refer to any which were not relied upon in the brief and not discussed on the argument. The brief presents the usual contention that both counts of the indictment are bad because the subject-matter of the alleged larceny is not described in the language of the statute. Eliminating unnecessary clauses, the statute (Rev. St. U. S. § 5467 [U. S. Comp. St. 1001, p. 3691]) reads:
“Any person employed in any department of the postal service, who shall secrete, embezzle, or destroy any letter * * * intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any mail carrier, * ⅜ * and which shall contain any note, bond, draft, check, warrant, ⅜ * * certificate of stock, or other pecuniary obligation or security of the government, or of any officer*350 or fiscal agent thereof, of any description whatsoever, * * * or any other article of value, or writing representing the same; any such person who shall steal or take any of the things aforesaid out of any letter * * ⅜ which shall have come into his possession, either in the regular course of his official duties or in any other manner whatsoever, * * * shall be punishable by imprisonment at hard labor for not less than one year nor more than five years.”
The incjictment charges that the accused “being then and there employed in a department of the postal service, to wit, as a letter carrier attached to Station D,” etc., “did unlawful^ and willfully secrete, embezzle, and destroy a certain letter, which was intended to be conveyed by mail, the same letter having been intrusted to him and had come into his possession as such letter carrier by virtue of his said office and employment, and was then and there addressed and directed as follows: [setting it forth]. And the same letter then and there contained articles of value; that is to say, two silver certificates of the United States, each of the denomination and value of one dollar,” etc. In a second count the indictment charges that .the accused,,, being then and there employed, etc. (repeating the description given in the first count), “did unlawfully and feloniously steal, take, and carry away certain money, to wit, a silver certificate of the United States of the denomination and value of one dollar, the property of one William T. Mayer [the inspector who- prepared the decoy letters], * * * from and out of a certain letter which then and there had come into his possession as such letter carrier, and by virtue of his said office and employment” — setting forth the address on the letter. The pleader has manifestly carefully conformed to the language of the statute. Cases are cited to the effect that bank notes are not the subjects of larceny at common law, and that under a federal statute of 1790 (Act April 30, 1790, 1 Stat. 114), making it a crime to take and carry away the “personal goods” of another, “bonds, bills, and notes, which are choses in action,” cannot he held to be personal goods. All of which is interesting, but irrelevant. It is contended that the second part of the section “applies only to cases where postal clerks take valuable contents from mail matter which did not come lawfully in the first instance into their possession”' — a most glaring misreading, for the language of the statute is, “either in the regular course of his official duties or in any other manner whatever.’’ It is insisted that there is an irreconcilable repugnancy between the terms “theft” and “embezzlement”; that, therefore, both counts cannot stand, and that acquittal should have been directed on the second one; that the first count is itself defective because inconsistent, and repugnant in charging in the same count a destruction as well as an embezzlement and secretion of the same letter. Much argument is presented in support of these propositions and authorities are cited,.which, although they have no reference to the statute under consideration, abundantly show that courts have frequently gone to the extremest verge of casuistry in finding technical defects on which to reverse criminal convictions. See particularly U. S. v. Dow, Taney, 34, Fed. Cas. No. 14,990. The sufficient answer to all this, however, is that we are dealing not with the common law, but with a specific statute; that such statute provides for
It is further contended that both counts are bad because “the marks, numbers, and particulars on the certificates ⅜ ⅜ * were not set forth.” Of the numerous cases cited in support of this proposition, some have no application. See Moore v. U. S., 160 U. S. 268, 16 Sup. Ct. 294, 40 L. Ed. 422, where an indictment charging a postal clerk with embezzlement of $1,652 in money of the United States, the property of the United States, was held defective because it failed to aver that the same came into his possession in his capacity of postal clerk. Others support the. contention, but áre wholly unpersuasive. See U. S. v. Fisler, 4 Biss. 59, Fed. Cas. No. 15,105, where an indictment for forgery of United States postal currency was held bad because it did not set out an exact copy of the thing forged, although, after the averment that it was .“in substance as follows.” the actual forgery itself was pasted on the face of the indictment. Others again hold that the indictment is good if it contains a substantive description of the subject-matter, sufficient to inform the accused of what he was charged with taking, and to protect him from being again put in jeopardy for the same taking. Jones v. U. S. (C. C.) 27 Fed. 447. This seems to be the correct rule, and it is conformed to when the indictment gives the particular kind of obligation of the United States and the denomination of such obligation, coupled with a specific description of the letter in which it was inclosed. The suggestion that the jury may have supposed that some letter or letters other than the “Dora Eynch” one were what the grand jury intended to charge the defendant with embezzling is absurd.
Among the errors assigned are those to the rulings which led to> the exclusion of the evidence offered by the accused to show who Hanlon, the person mentioned by the witness Kiechlin, was. The evidence was offered for the purpose of showing that Hanlon was a former letter carrier on the route of the accused, who had been convicted through decoy letters addressed like the two intended for the accused. It is contended that Kiechlin’s remark suggested that the two letters placed by him in the misbox were decoy letters, such as had been used to entrap Hanlon; that, since it was made in the hearing of the accused, it was a remark likely to arouse his suspi
It is contended that an acquittal should have been directed because the proof showed that the letter in question was not “intended to be conveyed by mail,” but was a test letter, intended to be intercepted. This suggestion is wholly without merit. The letter, with the “back stamp” of the station on it, was placed in the carrier’s .pigeonhole with the other letters there placed for him to take, sort, and deliver to the proper addresses. The expectation that it might be intercepted by a dishonest carrier or clerk in no way destroyed its character when once regularly deposited in the mail, so stamped and addressed as to make it the duty of honest clerks and carriers to pass it forward to its destination. Section 5468 provides that the fact that any letter has been deposited in any post office or in any other authorized depository for mail matter shall be evidence that the same was “intended to be conveyed by mail” within the meaning of section 5467. The case cited, U. S. v. Hall (D. C.) 76 Fed. 566, does not apply. There the letter was addressed to a fictitious person at a fictitious address, and the officers who had placed it on the table where the accused clerk found it intended, if he did not take it, to themselves remove it from the mails, since “it could not be delivered to any such person at any such address.”
It is further contended that the government failed to make out a case because it did not show that no two silver certificates bear the same number, and the brief states that the “bill in question is identified through its serial number alone.” This, again, is a gross misstatement of the evidence. The post-office inspector who prepared the decoy letters testified that he copied the serial number and the date of each of the bills inclosed, and also made a private mark on each bill, viz., an ink dot on the letter O in the word “One” on the face of each bill. The other inspector corroborated him. The bill obtained from the store where the accused got the tobacco was produced on the trial, and the inspector testified that it was “one of the one-dollar bills that was placed in the letter postmarked ‘Bridgeport.’ ” He didn’t say how he identified it. No one asked him any such question on either direct or cross examination. Presumably such question was thought to be an idle one when the bill was present, and every one — counsel, witnesses, and jury — could tell from mere inspection whether the three earmarks, number, date, and ink dot, were collectively present. If they were, identity would seem to be established beyond any reasonable doubt.
At the opening of the cause counsel for the accused asked to have the witness Kiechlin excluded during the trial. The only ground assigned was that he was a hostile witness subpoenaed by the defense. This re
It is assigned as error that the court allowed the government, on rebuttal, to call Hoyler, and show by him that he found two printed “Rev. Father Rector” letters in the misbox, and placed them in the pigeonholes of the accused. The prima facie case, by the testimony of Brucher, traced the decoy letters direct from Bromberger’s boxes to his hands. Then the defendant called Kiechlin to show that he found two similar printed letters in his boxes, and that he misboxed them. This made an apparent conflict with Brucher, and might have warranted the jury in finding that Brucher made a mistake by putting the decoys in box 22 instead of 21, and that Kiechlin, getting them out of that box, kept one and misboxed the other, which came to the accused, and was by him delivered. The prosecution was clearly entitled on rebuttal to show that, somebody (the jury might infer it was Kiechlin) misboxed two printed envelopes. The circumstance that, when this evidence came in, there was an easy explanation harmonizing the. testimony of Brucher, Kiechlin, and Hoyler on the theory that genuine printed rectory letters were in the station that day besides the decoys, did not warrant its exclusion.
The District Attorney, in his summing up, commented sharply on the attempt to show that Kiechlin was the guilty person, and on the possibility of two genuine letters having been made way with at the same time as the Bridgeport decoy. That did not necessarily follow, for, if the two rectory letters which Hoyler found in the misbox were genuine, they may not have reached the carriers’ separation cases in time'for Bromberger to get them before he started. The exceptions to refusal of the court to check counsel for the prosecution when summing up are without merit. Necessarily that part of the trial must be left largely-to the discretion of the trial judge, and the above statement indicates that there was no abuse of discretion in this case.
Some additional assignments of error do not call for any extended discussion. It is sufficient to say that they are, in our opinion, unsound.
The-judgment is affirmed.
Dissenting Opinion
(dissenting). I agree with* the' majority of the court that the evidence upon the trial fully warranted the verdict of guilty. Nevertheless, the question of the defendant’s guilt was one for the jury, and, if he was deprived of introducing evidence,-however slight its value might be, tending to show the possibility of his innocence, his exceptions to the rulings should entitle him to a new trial. I think he should have been permitted to show that Hanlon, the person mentioned by the witness Kiechlin, was a former letter carrier on the route of the defendant, who had been convicted of embezzlement and of larceny through decoy letters addressed like the two intended for the defendant. Kiechlin’s remarks suggested his suspicion that the two letters placed by him in the tnisbox were decoy letters, such as had been used to entrap Han-lon. They were made in the hearing of the defendant, and were likely to excite his suspicion also, and lead him to exercise unwonted caution to avoid being detected. The argument that, after his attention had been called to the character of the letters, he would be unlikely to embezzle them, or more wary in disposing of their contents, was one which could have been legitimately addressed to the jury; and, in view of the evidence introduced in his behalf tending to throw doubt upon his guilt, might have influenced their verdict. The exclusion of the evidence cannot be disregarded because the evidence may have been of trifling value. For this reason I think the defendant is entitled to a reversal of judgment and a new trial.