165 F. 174 | 6th Cir. | 1908
The indictment in this case charged the respondent Shaw, in three counts, with having violated the pro
The particulars of the charge made in the first count were that the respondent was at a lime stated employed by the United States as a railway postal clerk, at Louisville, I\y., “and did then and there unlawfully and feloniously secrete and embezzle a certain letter which had then and there come into liis possession, and was then and there intended to be conveyed by mail of the United States, and which then and there contained articles of value, to wit, twelve dollars in money of the United States.” The respondent filed a general demurrer that the count did not “state facts sufficient to constitute any offense against the laws of the United Slates.” The demurrer was overruled, and the respondent excepted.
It is urged that this count of the indictment is had in that it fails to charge with sufficient legal certainty that the letter came into the respondent’s possession by reason, or because of, his employment in the postal service; and we think that upon demurrer it should have been so held. It is a necessary implication of the statute that the letter should have come to the carrier in his official character. It is only a matter of inference, and not of necessary consequence, that it came into his possession as a postal carrier. It may have been delivered to him as a mere private person to be taken to the post office, or picked up by him on the street and was being taken to the post office, or perhaps to be returned to the sender whose name and address were on the envelope; and other not extraordinary circumstances may have attended his coming into the possession of the letter as a private individual. His possession acquired in any of these ways would he sufficient to meet the allegation of the indictment in'this particular, and yet there would he no violation of the statute. The statement that the act was done “then and there” is nothing more than an allegation of time and place, and brings forward into the context a repetition of what had already been stated as the date and venue of his employment. United States v. Cook, 17 Wall. 174, 21 L. Ed. 338; United States v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588; United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135.
But the District Attorney argues that this uncertainty may be help
Our conclusion being that the indictment is bad in respect to a material averment, there is no occasion to consider the other assignments of error.
The judgment is reversed, with direction to sustain the demurrer and enter judgment dismissing the proceeding.