31 F. 725 | U.S. Circuit Court for the Southern District of Georgia | 1887
The defendant, on arraignment, filed a demurrer and a plea in abatement to the indictment. The demurrer averred that the allegation of ownership of the stolen property, to-wit, a check payable to Walker, and indorsed in blank by him, and mailed to S. T. Coleman & Co., to pay a debt due to that firm from Williams & Co., with the further averment that the check was the property of S. T. Coleman & Co., was fatally defective; the defendant insisting that it is a necessary conclusion of law from all the averments, taken together, that the check was not the property of S. T. Coleman & Co., but was the property of the sender. There can be no doubt that it is essential to the indictment that there must be a faithful description of the article alleged to be stolen, (1 Whart. Crim. Law,§ 934,) and the description must be proved as laid, (2 Whart.' Crim. Law, § 1829; U. S. v. Martin, 2 McLean, 256.) It may be considered as settled that property sent by the mail may be laid in the sender. U. S. v. Burroughs, 3 McLean, 405; 1 Whart. Crim. Law, § 946.
It is insisted, too, that if payment is sought to be made by sending-money or other articles of value through the mail, it is done at the sender’s risk, unless done by direction, either express or implied; citingCode Ga. § 2866; Abb. TrialEv. 803,§ 10; Bank v. McManigle, 8 Amer. Rep. 236; 2 Daniel, Neg. Inst. § 1474. I do not think that these authorities afford fair analogies for the determination of the sufficiency of the description in an indictment for larceny. It may be true that to send money through the post is at the risk of the sender, in the absence of authorization to use the mails; but, unquestionably, the party to whom it is addressed, after it has left the mailing office, has a qualified interest in the letter, and a title to the valuable contents, upon which he could maintain trover against a third party unlawfully obtaining its possession. In the case of U. S. v. Jackson, reported in 29 Fed. Rep. 503, and subsequently in 9 Crim. Law Mag. 325, this court, in charging the jury, said that when the ownership of a registered letter and its contents is alleged to be in the person to whom the proof shows it was directed, and the proof shows that when it was stolen the sender had deposited it with the postmaster, taking his receipt therefor, and it had, by due course of mail, left the mailing office, that its custody by the post-office department was for the benefit of the person to whom it was addressed, that it was his property, the sender had no control over it, and there is no variance. There can be no difficulty in the application of the principle of this decision to an unregistered letter. The necessities of trade and commerce require that the courts should give a practical application to the rules of pleading in cases arising under the meth- , ods of modern times. An immense mass of technical cobwebs has been swept away by that gradual reform which has been evolved by the liberal tendencies of the courts in passing upon the sufficiency of indictments, and in repeated recommendations to congress, that profound lawyer and distinguished advocate, the Honorable Benjamin Harris Brewster, lately the attorney general of the United States, urged the importance of legislation which would further aid .the courts in dispensing with the
The demurrer, therefore, is overruled.
The defendant then presented his plea in abatement. This recites the 1'act that on the grand jury who found the indictment there was a juror who was a member of the special jury which at a previous term returned a verdict of guilty against the prisoner for the same offense, which verdict has since been sot aside; and the plea further recited that the defendant had no opportunity to challenge such grand juror. Those facts being admitted by the district attorney, it was ordered by the court that the plea in abatement be sustained, and tlie indictment dismissed. Thereupon the prisoner was instantly arraigned upon a second Indictment, found at this term, in the precise terms of the indictment disposed of. To this indictment the prisoner renewed pro forma the demurrer, which was made to the first indictment, and the court overruled the same on the grounds before stated. Thereupon the prisoner filed a plea of autrefois convict, and former jeopardy, annexing a copy of the indictment in the district court of the United States for this district and division, and the verdict and sentence thereon, whereby it appeared the defendant was sentenced to five years’imprisonment in the Albany county penitentiary, in the state of New York, and that he had suffered six months’imprisonment thereunder. When this plea was tendered, the district attorney, calling attention to the fact that there was a motion for a new trial and arrest of judgment, and ail order overruling the same in the district court, a writ of error to the circuit court, and a judgment of the circuit court setting aside the verdict, and quashing the indictment, and declaring it should “go for naught,” insisted that the record attached to the plea as an exhibit was not complete. After argument, the court held that it is not competent for the prisoner to extract a portion of the record, and exhibit it to the plea of former conviction, but that the entire record must be produced. The prisoner then amended his plea, setting out, as an additional exhibit thereto, the record of the motion lor new trial and arrest of judgment, the order granting the writ of error, the writ, and Hie judgment of the circuit court setting aside the verdict, and quashing the. indictment, and ordering the discharge of the prisoner.
To this plea, as amended, the district attorney demurred. He insists since the circuit court, the lion. Don A. Pardee, circuit judge, presiding, held the indictment to bo defective, and that the trial should go for uaught, that the entire proceeding was a nullity, and, as a consequence, the prisoner had never been in jeopardy. The prisoner’s counsel frankly concede that the great mass of authority fully supports the conferítion of the government’s counsel, hut they also insist that the au