38 F. 106 | U.S. Circuit Court for the District of Eastern Michigan | 1889
The circuit judge and myself had occasion not long since to hold that section 5467 covered tho offense of secreting and embezzling valuable letters, as well as stealing their contents. U. S. v. Atkinson, 34 Fed. Rep. 316. A similar ruling had been made by Judge Benedict in U. S. v. Pelletreau, 14 Blatchf. 126, although this case escaped our attention at the time. It is intimated in both opinions, however, that the word “and” might be implied to connect, the two clauses of the statute, and thus remove every possible doubt as to its construction. Perhaps it would have been well to have substituted “or” for “and,” and thus removed any doubt as to the disjunctive nature of the two clauses, since the twenty-first section of the crimes act of March, 1825, from which this act was originally taken, uses that conjunction to connect tho two clauses, instead of the other.
The authority of these cases is not disputed, but it is insisted that the two clauses of the section should be road conjunctively, and the proviso “that the same shall not have been delivered to the party to whom it is directed ” shall apply to both clauses. The case of U. S. v. Taylor, 1
The motion for a new trial raises a much more serious question. The letters were decoys, prepared by the detectives of the post-office department in such a manner as to indicate that they contained money. They were addressed to fictitious persons, and to non-existent places of delivery, and were deposited in different boxes in the city of Detroit, with the intent that they should be taken up by the postmen or carriers, carried to the post-office, and delivered to the defendant, and, in case he did not embezzle them, to be returned to Mr. Smith, the detective. The duties of the defendant were to sort and place in the proper receptacle in the post-office letters which did not go directly to the carriers by reason of imperfect addresses. All the letters described in the indictment came into the post-office in the usual course of business. They were laid upon the table, or put into a receptacle of which it was the duty of the defendant to examine the contents, in pursuance of a plan to test him; and it was the understanding that if any of these letters should pass through his hands they were to be taken by the superintendent of mails and returned to the detective. Defendant contends that under all the circumstances the conviction cannot be sustained, because the letters were not intended to be conveyed by mail, or carried or delivered by any mail carrier, within the meaning of section 5467. If counsel intend by this to assert that a decoy or test letter cannot be the subject of embezil?
Defendant’s main reliance in this case, however, is upon the fact that the letters were addressed to a fictitious person, and to a post-office, street, or number (varying in each ease) which did not exist, with the design that they should be intercepted if they passed safely through his hands. These letters were all deposited in the regular boxes in different parts of the city, and were intended to be carried by letter carrier to the post-office at Detroit, within the literalism of the statute. It is then only by importing into the act words which are not found there, viz., that they must be intended to be carried to “ their place of destination,” that the letters are taken out of the language of the statute. We know of no authority which holds directly that a letter must be intended to be carried through the mail to the person to whom it is addressed. On the contrary, it was expressly held by Mr. Justice Curtis in U. S. v. Foye, 1 Curt. 364, that the purpose of the writer not to have the letter go to its apparent destination did not affect its character, or prevent it from being a letter intended to be transmitted by post, or take it out of the protection of the statute; and in Reg. v. Young, 1 Denison, Cr. Cas.
A single consideration remains to be discussed. Did the inspector exceed his authority in putting the money into the envelope in such a way as to apprise defendant that the letter probably contained an article of value? In the note to Bates v. U. S., 10 Fed. Rep. 97, to which allusion has already been made, it is said that, if an employe be suspected of stealing money, “I may mark money, and have it exposed in such a way as to attract his attention; and if he steal it, and if he subsequently be presented for larceny, he cannot defend on the ground that a trap was laid for him,” — and a number of authorities are cited in support of the proposition. Defendant relies in this connection upon the case of Saunders v. People, 38 Mich. 218. No such point, however, was decided in this case; but two judges expressed the opinion that the conduct of a policeman in leaving the courtroom door unlocked, so that the prisoner could get certain papers that ho desired, was indefensible. This opinion, however, is in direct conflict with that of Rex v. Egginton, 2 Bos. & P. 508; Reg. v. Lawrance, 4 Cox, Crim. Cas. 438; Reg. v. Johnson, Car. & M. 218; and with Reg. v. Williams, 1 Car. & K. 195. We think that no obstacle should be thrown in the way of the detection of crime that does not amount to a practical inducement or solicitation to commit it.
The true doctrine in respect to larceny is thus stated by Chitty, (3 Crim. Law, 925:) If the owner, in order to detect a number of men in the act of stealing, directs a,sorvant to appear to encourage the design, and leads them on until the offense is complete, so long as he did not induce the original intent, but only provided for its discovery after ijt was formed, the criminality of the thieves will not be destroyed. 4 Bl. Comm. 280, note; 2 Whart. Crim. Law, § 1859; 1 Bish. Crim. Law, § 344; Alexander v. State, 12 Tex. 540.
Both motions are overruled.