United States v. Atkinson , 34 F. 316 ( 1888 )

Biiown, J.

It is insisted upon this motion that both the first - and third counts, one of which charges the defendant with embezzling, and the other with secreting, a letter containing an article of value, are defective in failing to allege that the act charged was done with a criminal intent. Exactly what words-are necessary to be used to set forth with sufficient clearness the fraudulent intent are not stated, but presuniing them to he “feloniously” or “fraudulently,” it is pertinent to inquire whether in the case of staiulofy offenses like this it is necessary to make use of them. Mr. Bishop states that where a new felony is created by statute, hut the statute does not use the word “feloniously,” there is a difference of judicial opinion whether the words should he pul in the indictment. 1 Bish. Criin. Proe. § 290. But many cases under this or similar statutes have held that offenses under the post-office laws are not felonies, hut misdemeanors, and that, if described in the words of the statute, the indictment is sufficient. In U. S. v. Lancaster, 2 McLean, 431, the indictment was similar to the one under consideration, using only the words, “secrete” and “embezzle.” The indictment was held sufficient, and it was expressly stated that it was not necessary to charge that the taking was felonious. In U. S. v. Mills, 7 Pet. 138, it was hold that an indictment setting forth that the defendant “did procure, advise, and assist one to secrete, embezzle, and destroy a letter,” was a misdemeanor, and that, in such cases, it is sufficient to charge the offense in the words of the statute. The indictment was held sufficient. Later cases in the supreme court are supposod to have laid down a more stringent rule, hut upon a careful examination, we think they only go to the extent of holding that all of the essential ingredients of the offense must be charged. Thus, in U. S. v. Cook, 17 Wall. 168, it is said that every ingredient of which the offense is composed must be accurately and clearly alleged; and where a statute defining an offense contains an exception in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot bo accurately and clearly described if the exception he omitted, it was held that an indictment founded upon the statute must allege enough to show that the accused is not within the exception; otherwise, if the language of ihe section defining the offense is entirely separable from the exception. The case particularly relied upon is that of U. S. v. Carll, 105 U. S. 611, in which it was held that an indictment for passing a counterfeited obligation of the United States must allege that defendant knew it to be counterfeited; but hero was a distinct fact, which it was conceded ivas necessary to he proven upon the trial,-and the court very properly held that it should he averred in the indictment. 1 take it, however, the rule is different where the fraudulent intent is to be presumed from the act done. 1 Bish. Grim. Proe. §§ 278-290. So, in U. S. v. Britton, 107 U. S. 655, 2 Sup. Ct. Rep. 512, it was held that a count which charged the president of a national bank with having “willfully misapplied” the funds of the association, should aver that lie did so for the benefit of himself, or some other person, and with an intent to injure or defraud; but the court in delivering the opinion said those words “have no settled technical meaning like the word ‘embezzle,’ as used in the statutes, or the words, ‘steal, take, and carry away,’as used at common law. They do not therefore of themselves clearly and fully set forth every element of the offense charged.” The word “embezzlement,” of itself, implies a fraudulent and unlawful intent on the part of the person charged. No one can lawfully or honestly embezzle money or other property. Certainly an official of the post-office department cannot lawfully embezzle a letter intrusted to him in his official capacity. In U. S. v. Laws, 2 Low. Dec. 115, the words used in the indictment were simply “secrete” and “embezzle,” and, although the case was vigorously contested, the point was not even made that any further description of the intent was necessary. So, in U. S. v. Sander, 6 McLean, 598, it was held that a count charging that the prisoner secreted and embezzled a certain letter was good. Indeed, the first count of this indictment seems to have been taken directly from Wharton’s Precedents, 1110, and is one which has been in common use in this district- ever since the court was organized.

In support of the second ground of the motion it is urged that the action of the revisors of the statutes in omitting the words contained in section 279 of the act of June 8,1872, “every such person shall on conviction thereof for every such offense,” unhitches the penalty in section 5467 from every offense described therein, except the last one, of stealing and taking articles of value out of any letter, etc. In support of this objection we are cited to the case of U. S. v. Long, 10 Fed. Rep. 879, wherein it was held that the omission of the words “every such person shall upon 'conviction thereof for every such offense” before the words “shall he punishable by imprisonment-,” was fatal to the punishment of every offense mentioned in the statute, except the last. Upon a careful reading of the section, we find ourselves unable to concur in the opinion of the learned judge in this case. Omitting all immaterial clauses, the section, as revised, now reads as follows:

“'Any person employed in any department of the postal service, who shall secrete, embezzle, or destroy any letter * * * which was intended to be conveyed by mail, *' * * and which shall contain any * * * article of value, or writing representing the same; any such person who shall steal or take any of the things aforesaid out pf any letter * * * shall be punishable by imprisonment,” etc.

We are unable to see why the punishment is not as applicable to the first offense of secreting, embezzling, or destroying, as to the second, for stealing and taking from the. letters; and it seems to us that the omission of the words, “every such person shall, upon conviction thereof, for every such offense” is entirely immaterial. Unless we adopt this construction, we must impute to congress the recital and definition of a grave offense in very elaborate language, for no apparent purpose whatever. The use of the word “and” to connect the two clauses would have removed every doubt, but we think it may be implied.

The motion in arrest of judgment is therefore overruled.