25 F. Cas. 207 | U.S. Circuit Court for the District of Ohio | 1844
OPINION OF THE COURT. The jury having returned a verdict of guilty, on the seven counts contained in the indictment, a motion is now made for a new trial, and also in arrest of.judgment:
On two grounds, the defendant’s counsel insist that a new trial should be granted. 1. “Because the bank notes alleged to have been stolen, are stated, in all the counts of the indictment, to be the property of Sem-ple and Barker, whereas the proof showed that they were the property of those persons and' two other individuals.” 2. “Because the proof was that the letter, which contained the notes, is averred in the indictment to have been directed to ‘31. Garraty, Esquire. Cashier.’ and the proof was, that it was directed to ‘31. Garraty, Esquire.’ ”
It was proved that there were enclosed in the letter, bank notes on the Lancaster (Ohio) Bank, amounting to two hundred and six dollars; one hundred and ten dollars of which belonged to Semple and Barker, and the residue to James L. Cooper and C. H. Kay. That these latter individuals deposited
The second ground, as regards the direction of the letter, affords no sufficient reason for setting aside the verdict. Barker, who directed the letter, says that his impression is, that it was directed to “M. Gar-raty. Esquire, Lancaster, Ohio,” but he does not speak positively on the subject. He made no entry of the superscription, and as two years have elapsed, it is hardly to be expected that he should be able to state the fact positively. In Rose. Ev. 199. “in an indictment upon 7 Geo. III., c. 50, the letter was described as one to be delivered to persons using, in trade, the name and firm of Messrs. B. N. & H.,” the word, Messrs., being frequently added to their address, in the direction of letters and other papers received on business, though they themselves, in drawing bills, never used the word. “This was held to be no variance.” If the letter had been presented, and the direction of it varied from the allegation in the indictment, it could not have been received in evidence. For, although the direction of the letter need not to have been stated in the indictment, yet having been stated, the proof must correspond with the allegation. But in this case the letter was not produced; the statement of the witness not being positive as to the variance, and the jury having found the defendant guilty generally, the verdict, it seems to us, should not be set aside. There is another view which is conclusive on this point. All the counts of the indictment, except three, are free from the objection of variance. The second count alleges that the letter was addressed to “M. Garraty, Esquire, Lancaster, Ohio.” The fifth count charges the defendant with embezzling a bag of letters, as carrier, which contained a bank note. And the sixth count contains the same charge, except a mail of letters is used instead of a bag of letters. The punishment on the two last counts, or either of them, is the same as on the three counts where the variance, if any, exists. So that, the finding of the defendant guilty on those counts does not, in the least, change the nature or amount of the punishment.
A motion for a new trial is addressed to the discretion of the court, and that discretion should never be exercised in favor of a defendant in a civil or criminal case, where substantial justice has been done, and where there is no principle of law which can operate favorably to the defendant. The letter, beyond dispute, was evidence under all the counts, except the third, fourth and seventh.The motion for a new trial is overruled. The motion in arrest of judgment is mainly founded upon the first count in the indictment. which charges the defendant with stealing the mail of the United States. In England, by the statute of 7 Geo. IV. c. 64,'--a material change has been made in the law,' so that many exceptions to an indictment, which were before fatal on a motion in arrest, now must be taken advantage of by demurrer or writ of error. This,- however, is not the law in this country. It is insisted that the carrier of the mail, if he take it fraudulently, is only guilty of a breach of trust; that such is the rule at common law. and that the act of congress does not make it an offence. In 1 Leach, 1, it is expressly laid down, that at common law, persons employed . in the post-office, have no special property in the letters committed to their charge, which may prevent their stealing from amounting to larceny. If a bag of wheat be delivered to a warehouse man for safe custody, and he take the wheat out of the bag and dispose of it, it is larceny. Russ. & R. 337. Where a clerk embezzled a bill of exchange, which he had received in the usual course of business to be transmitted by post, it was held to be larceny. Case of Paradice, 2 East, P. C. 565; Case of Taylor [3 Bos. & P. 596]. The courts of the United States have no common law jurisdiction of offences, and the above citations are only made to show that the ground assumed as to the acts of the carrier, at common law, is not sustainable. It is admitted, that unless the charge in the first count is sustained un-derthetwenty-second sectionof the post-office act of 1825 [4 Stat. 108], the count is bad. The words of the section are, “And if any person shall steal the mail, or shall steal or take from or out of any mail, or from or out of any post-office, any letter or packet; or if any person shall take the mail, or any letter or packet therefrom, or from any post-office, whether with or without the consent of the person having custody thereof, and
The defendant is charged, as carrier, with stealing the mail. Now. there is no such of-fence known to the law. But stealing the mail is an offence, and, it is supposed, that the defendant, to such a charge, could not plead in justification or excuse that he was a carrier of the mail. Suppose a carrier of the mail should steal a letter from a post-office, and should be indicted for the taking of the letter as carrier, could he not be convicted? His description as carrier would be considered as used to identify him, and not as constituting an ingredient by which the penalty is to be measured. It is supposed that the count is defective, because the property of the mail is not laid to be in the United States, or in any one; nor is its value stated. This being a statutory offence, the value of the mail need not be stated, any more than the value of the letter. If a letter be stolen from a post-office, which contains an article of value, a higher punishment is inflicted on the offender-, and consequently the article must be described and the value of it stated. But for the taking of a letter, which contains nothing of value, no value need be averred; and so it is in regard to the maiL I confess that I am inclined to think, if a carrier of the mail, having possession of it, shall steal it, he cannot escape, for the reason that there is no provision in the statute to punish him as carrier. The act is punishable. and I see no reason why a carrier of the mail should escape. But it is unnecessary to overrule the motion in arrest, on this ground. The court do not decide the question. If the first count be bad, there being other counts in the indictment which are good, on a general verdict of guilty, the judgment cannot be arrested. In this, an indictment differs from a declaration. For one defective count in the latter, the judgment must be arrested; while in the former, one good count sustains .the verdict. The motion in arrest of judgment was overruled; and the defendant was sentenced to ten years imprisonment in the penitentiary at hard labor.