34 F. 316 | E.D. Mich. | 1888
It is insisted upon this motion that both the first - and third counts, one of which charges the defendant with embezzling, and the other with secreting, a letter containing an article of value, are defective in failing to allege that the act charged was done with a criminal intent. Exactly what words-are necessary to be used to set forth with sufficient clearness the fraudulent intent are not stated, but presuniing
In support of the second ground of the motion it is urged that the action of the revisors of the statutes in omitting the words contained in section 279 of the act of June 8,1872, “every such person shall on conviction thereof for every such offense,” unhitches the penalty in section 5467 from every offense described therein, except the last one, of stealing and taking articles of value out of any letter, etc. In support of this objection we are cited to the case of U. S. v. Long, 10 Fed. Rep. 879, wherein it was held that the omission of the words “every such person shall upon 'conviction thereof for every such offense” before the words “shall he punishable by imprisonment-,” was fatal to the punishment of every offense mentioned in the statute, except the last. Upon a careful reading of the section, we find ourselves unable to concur in the opinion of the learned judge in this case. Omitting all immaterial clauses, the section, as revised, now reads as follows:
“'Any person employed in any department of the postal service, who shall secrete, embezzle, or destroy any letter * * * which was intended to be conveyed by mail, *' * * and which shall contain any * * * article of value, or writing representing the same; any such person who shall steal or take any of the things aforesaid out pf any letter * * * shall be punishable by imprisonment,” etc.
We are unable to see why the punishment is not as applicable to the first offense of secreting, embezzling, or destroying, as to the second, for stealing and taking from the. letters; and it seems to us that the omission of the words, “every such person shall, upon conviction thereof, for every such offense” is entirely immaterial. Unless we adopt this construction, we must impute to congress the recital and definition of a grave offense in very elaborate language, for no apparent purpose whatever. The use of the word “and” to connect the two clauses would have removed every doubt, but we think it may be implied.
The motion in arrest of judgment is therefore overruled.