1 F. 784 | U.S. Circuit Court for the District of Eastern Virginia | 1880
This is an information for the embezzlement of a letter. The offence is statutory, and the information must charge such an offence as the statute defines. It is not the taking and secreting of any letter that constitutes the statutory crime. Under the terms of this law, that only is embezzlement where the letter is in postal custody; is not yet delivered to the person to whom it is addressed; contains some one of the valuable things named in the statute; and this valuable thing is taken out of the letter or stolen. This same section of the Revised Statutes also makes the act of taking this valuable thing out of the letter, or stealing it, an offence. In the case of the U. S. v. Taglor, 1 Hughes, 514, I held that there might be a prosecution for taking or
In the ease at bar the government prosecutes only for the embezzlement of the letter, and alleges the stealing or taking of its contents only by way of description. Accordingly, the information, after charging the embezzlement, goes on by words of description to set forth that the letter was such as is defined by the statute; and, amongst other things, that it contained two treasury notes, and that these notes were taken out of the letter and stolen. These latter words are not employed in the technical form usual in charging a larceny, because the information is not for the offence of larceny, but distinctly and only for that of embezzlement; and the taking or stealing of the notes is alleged by way of description for the purpose of bringing the offence fully within the terms of definition employed by the statute. If it were, indeed, an information for the common law offence of larceny, (an offence rarely prosecuted in the United States courts,) then it would, no doubt, be defective in not alleging an adverse ownership of the two treasury notes in some person other than the accused.
Having premised this much, I come now to consider particularly the grounds on which the motion in arrest of judgment is founded.
1. It being an information for embezzlement, this offence does not fall within the provisions of the fifth amendment to the national constitution.
It has been often held that when terms of the criminal law are used in that constitution they are intended in their
The term infamous there used is a term of the law, and is to be construed as such with technical precision.
As the offence charged is not treason, and is not expressly declared by act of congress to be a felony, it is a misdemeanor. It may, therefore, be tried on information, unless it is of that class of misdemeanors which fall within the designation of crimen falsi.
The charge is for embezzling a letter containing money, and a conviction for embezzlement has never been held to render the party convicted incompetent to testify, which is the tost by which the character of an offence may be determined to be or not crimen falsi.
In the case of the U. S. v. Lancaster, 2 McLean, it was decided that all offences under the post-office laws are misdemeanors. If, then, embezzlement is not an infamous offence, the offence charged in this information is clearly not infamous. Moreover, as it is not charged or averred in the information that the letter embezzled went into the defendant’s possession by virtue of his employment, the offence ,as set forth in the heading does not even involve a breach of trust.
It has of late years boon so often held by this and other federal courts that offences not infamous may be tried on information, that I hardly deem it necessary to refer to the decisions. Judge Dillon has so decided in U. S. v. Maxwell, a case which has frequently been quoted and relied on in this court. See 21 Int. Rev. Rec. 148; see, also, U. S. v. Shepherd, 1 Abb. U. S. Rep. 432. In the case of the U. S. v. Henry Miller it was so decided by this court. That case was much stronger than this, because the offence could much more appropriately be regarded as crimen falsi. In that case the charge was of conspiring to defraud, the United States. The defendant was tried at Norfolk, convicted, and sentenced to the penitentiary.
Under the federal law it is not the mode or measure of the punishment prescribed that determines the character of offences, as is the case under the statute of Virginia. Hence
By the Virginia statute, all offences are declared to be felonious which are punishable capitally, or by confinement in the, penitentiary; and if this statute prescribed a rule of decision for the federal courts in the state when trying criminal offences against the United States, there is no doubt that the defendant at bar could be tried for his offence only upon an indictment, inasmuch as the offence is punishable by hard labor, which is not necessarily, but is generally, a species of punishment inflicted only in a penitentiary. But this state statute does not apply at all in the federal courts in criminal trials. The rules for our procedure in such cases are derived from the common law. See U. S. v. Reid, 12 How. 361.
Under the federal laws, nothing is felony unless expressly so declared to be by congress, with exception of capital offences. And it has always been the policy of congress to avoid, as much as possible, the multiplication of statutory felonies. See 1 Greenleaf on /Evidence, § 373; and 1 Whar. Crim. Law, § 760.
I may add that informations are never brought in this court except after formal complaint under oath, and full examination before a commissioner of the court wherein the witnesses testify while confronted by the accused; nor are they filed except by leave of court. In the case at bar the information was filed upon motion for leave to do so, in the presence of the accused and his counsel, without objection on their part or offer to show cause to the contrary.
On the whole, therefore, I must overrule the objection in arrest of judgment founded upon the fifth article of the amendments to the constitution.
2. I have already virtually disposed of the second objection, viz., that this is an information charging larceny, and, for that reason, is defective in not charging ownership of the treasury notes in some person other than the accused. I have already shown that this is a prosecution for the embez-. zlement of a letter, and that one of the ingredients of the
The motion in arrest of judgment is denied.
