35 F. 890 | U.S. Circuit Court for the District of Maryland | 1888
(orally.) The defendant, a substitute clerk in the post-office at Baltimore, was indicted in the district court for the offense
It appears—using substantially the words of the bill of exceptions—■ that the accused was a substitute clerk in the city division of the Baltimore post-office. It was his duty, in connection with oilier persons, to back letters with the date of their being received in the post-office, and to cancel stamps on letters. In his division were throe tables parallel with each other, namely, the dumping, hacking, and canceling (al)les. The course of business was to empty all mail pouches, together with the letters for the city of Baltimore collected from the street-boxes and the various receptacles at the post-office, upon the dumping table, from which
“In order to convict the prisoner, the jury must find that he was a clerk in the post-office at Baltimore, and that the letter mentioned in the indictment came into his custody and possession while in the performance of his duties as such clerk, and that the letter was intended to be conveyed by mail. As explaining what, under the law applicable to this case, is meant by a letter intended to bo conveyed by mail, I give the jury the instruction contained in the first prayer of the attorney of the United States.”
The court refused to grant the following, among other, prayers of the defendant:
“If the jury find from the evidence that the letter described in the indictment was not intended to be convoyed by mail, then their verdict must be for the defendant. If the jury find from the evidence that the letter described in the indictment was not intended to be conveyed by the mail from the said post-office in Baltimore to the said Henry Waidner at Baltimore, then their verdict must be for the defendant.”
To the granting of the above prayers for the United States, and to the refusal of the prayers of the defendant, the latter excepted. He also excepted to the instruction given by the court upon its motion.
The accused having been acquitted of the latter offense,—probably because of some technical failure of proof as to the ownership of the money taken from the Waidner letter,—we have only to inquire whether the learned district judge properly interpreted that part of the statute which prescribes the offense charged in the first indictment. It was not disputed in argument—indeed, the instructions to the jury proceeded upon the ground—that it was not enough for the government to prove, in this case, that the accused was in the postal service, and secreted, embezzled, or destroyed the Waidner letter, after it came into his possession. Its case was not complete unless it further appeared—to use the language both of the indictment and the statute—that the letter was “intended to be conveyed by mail.” It is not made by section 5467 an offense against the United Btates for one who happens to bo in the postal service, to secrete, embezzle, or destroy a letter intrusted to him,
A different interpretation of the statute is not required by any of the adjudged cases to which my attention has been called. The counsel relies with some confidence upon U. S. v. Foye, 1 Curt. 364. Foye, a mail carrier, was indicted for stealing a bank-note from a letter which the indictment charged ivas deposited by one Stickney in the'post-office at Georgetown, Mass., addressed to John Blake, Ipswich, and “which was intended to he conveyed by post, and was then and there mailed, to be conveyed in the mail of the United States to the town of Ipswich, aforesaid.” The evidence showed that one “Stickney was postmaster at Georgetown; that, in consequence of the loss of money from the mail on that route, he agreed with the postmaster at Newburyport to deposit in the mail a letter containing money, addressed to John Blake, Ipswich. If the letter should arrive safely at Newburyport, it was not to be sent on to Ipswich, but was to be returned to Stickney. In pursuance of this arrangement, this letter and money were sent, arrived safely at Newburyport, and wore returned to Stickney, who, the next day, remailed the same letter, and the bag containing it was committed to the prisoner, who was the mail carrier between Georgetown and Newburyport. The loiter was mailed precisely like others; that is to say, a bill was made out, containing the usual entries; this bill and the letter wore inclosed in a wrapper, and the packet addressed to Ipswich, and deposited in the mail-hag with other packets.” It was objected, on behalf of the accused, that the letter was not a letter intended to he conveyed by post, within the meaning of the act and of the indictment. After distinguishing the case of Queen v. Rathbone, Car. & M. 220, upon which the defense relied, and which arose under a statute of Great Britain declaring that a “ post letter shall mean any letter or packet transmitted by the post, under the authority of the postmaster general,” Mr. Justice Curtis said:
“ In the ease at bar tile only material difference between the letter stolen and any others in the same bag was that it was not intended to be sent to its address. But it was intended to be conveyed by post from Georgetown to Newburyport, and was regularly mailed for that purpose. We do not think the purpose of the writer, not to have the letter go to its apparent destination, affects its character, or prevents it from being a letter intended to be transmitted by post, or takes it out ot' the protection of the statute.”
In the same opinion it was said to be “necessary to allege that the letter wras intended to be conveyed by post.” So far from that case being adverse to the views now expressed, the decision supports the conclusion reached by me; for, while Mr. Justice Curtis says that the intention that the letter stolen by Foye should not go to its address was an immaterial circumstance, he lays stress upon the fact that it was intended to be conveyed by post from Georgetown to Newburyport, and -vas regularly mailed for that purpose. If it ha,d appeared in that case
It is proper to .say that the conclusion reached by me has not been influenced in any degree by the fact that the postal authorities, charged with the duty of ferreting out depredations upon the mail, used what are called “decoy letters.” ' The employment of such means for the protection of the mails cannot possibly work harm to honest public servants. Neither the statute nor good morals forbids the use of decoy letters for the purpose of detecting postal thieves. My decision rests upon the ground that there Avas evidence tending to show that the Waidner letter was not intended to be conveyed by mail, and that the district court erred in not leaving it to the jury to determine, under all the evidence, whether it was intended to be so conveyed. The question presented is, I admit, a close one; but my best judgment favors this construction of the statute as the one most likely to give effect to the will of congress. For the reasons stated the judgment of the district court is set aside, and a new trial granted. The-case will be put on the docket of the circuit court for trial at its next regular term. As the accused is in the penitentiary under the judgment- of the district court, he can be brought before me upon writ of habeas corpus, and admitted to bail for his appearance at such term.
After the above decision was announced, the attorney for the government asked if the court liad considered whether the judgment of the district court could not be sustained under section 3891 of the Revised Statutes. Mr. Justice Harlan said that although that section had not been referred to in argument he had not overlooked it, but that it was unnecessary to decide whether a conviction could be had under that section for the offense charged in the present indictment. Even if it could, the punishment fixed by the judgment of the district court was in excess of what section 3891 authorized. Whether that section covered the case now before the court in any of its aspects could be best determined at the trial in the circuit court.