GILES. District Judge
(charging jury). I think I but say what every person who has been n witness of this trial will unite with me in saying, that no case was ever more faithfully tried: the indictment was drawn up with all the care and skill which characterizes the assistant Unit ad States district attorney. of whose indictments I have quashed but one of the many which he has drawn while serving the government in that office. As to this district, no matter what may be the fact elsewhere, this case is one of first importance (for the employees of the government lor this district have been, so far as known, faithful officers), and hence it required • careful consideration. Never since I have been on the bench has a prisoner been defended more ably: the learned counsel who last addressed the court (Air. Mathews) has exhibited throughout this cause eminent ability, an ample preparation and a careful industry, which, if persevered in, must soon place him in the front rank of the profession: certainly the force and qualities which he has shown have proved him to be a worthy colleague of the other counsel (Mi. Whitney), in regard to whose characteristics in criminal cases it is unnecessary for the court to add one word of praise. He dissects a criminal case with the same coolness and skill with which Baron Larey or Surgeon Smith of this city would use the dissecting knife upon a patient strapped to his board. This case then being one o'f such great interest I have examined the [1211]*1211points involved in it with great care. The first question that arises is, “Was the prisoner an officer within the meaning of the act of 1846?" The learned counsel for the de-fence pressed the argument that he was not such an officer as would come under the provisions of that act, hut a mere employee of the custom-house, with great earnestness, and to sustain it they quoted the act of 1790 and from the Opinions of the Attomeys-Gen-eral (volume 4. p. 26): but I said then as 1 say to-day, that if any attorney-general had given such an opinion, in view of the act of 1817, that it was not law, and I found upon examination last night that no such position had been taken by Mr. Legare, of South Carolina, whose opinion my friends referred to, and that they must have been misled by reading the headnote, for that opinion of his was based upon the 22d section of the act of 1799, and he says nothing in it of the act of 1817, and no doubt was not aware of it at the time. If my friends had read on a little further they would have found that upon page 163 that eminent attorney-general sustains me in the opinion I shall deliver to-day. Before quoting this opinion, however, I will say that I find upon reference to the acts of congress that the act giving the power to collectors to appoint inspectors is in the very words of the act of 1817, whicn gives him power to appoint deputies.
GILES, District Judge, then read from the act (3 Stat. 215). calling Mr. Whitney’s attention to the fact that the word used was “employ.” and not “appoint,” after which he quoted at length from the opinion, which was in the form of a letter addressed to the secretary of the treasury, dated March 24. 1843. in relation to the character of inspectors, and which held that they were officers of the government. and came under the act of 1846. Then resuming, he said: Now. the act of 1817 gave this permanent power to the collector. and congress provided afterward an annual compensation for the officer, by the act of 1851. Therefore I look upon the deputy collector as a permanent officer of the government, who obtains his appointment from the secretary of the treasury, and remains in office aftei his superior goes out, until his (the deputy's) successor is appointed and qualified. But is he an officer within the meaning of the sulvtreasury act (the .act of 18461? q
The judge then read the sixth section of the act, calling special attention to the general words used in it: “All public officers of whatsoever kind.” These words embrace, said he. any officer of the government in whose possession the public funds may at any time be deposited, in whatever manner they be so deposited, and the sixteenth section declares it to be a felony for these officers to embezzle these funds. Now, this act makes it the duty of certain officers to keep accounts with the government, and afterward makes these accounts prima facie evi-' deuce against them on' a charge like this; but it would be doing violence to ■ the language of congress to suppose that this act was confined only to those officers who have to keep accounts with the government. I should myself have had no difficulty upon this point if it had been a new question, and should have arrived at a different conclusion upon it than the judges in Philadelphia: but it is not a new question, and I am bound by the decision of the supreme court in tne case of U. S. v. Hartwell. 6 Wall. [73 U. S.] 385, and no one can have any doubt after that decision. The officer tried in that case stood upon the same footing as a deputy collector; he was ajr-pointed under the 23d section of the act of 1866; and the supreme court says he was a public officer, and a person charged with the safe-keeping of the public money. The judge then read from the opinion of the court, and showed where it applied to the case at bar. I am aware, said he, that Justice Grier, with two others, dissented, but the opinion of the majority, delivered by Justice Swayne. binds this court, and I have no doubt from it that the deputy collector is an officer who comes under the act of 1846.
I now come to another branch of the case, and the only one upon which the United States district attorney and myself differed. Here I agree with the counsel for the de-fence, that before there can be an embezzlement there must be trust and confidence; so says the act — “moneys entrusted.” Hence I permitted the district attorney to give evidence of what the practice of the office had been at the time as to the fact that the deputy collector was permitted ro receive the public money, and that as a public oflicer he was therefore entrusted with it.
One word more: There was some objection made to the indictment, that it charges that these offences were done by General B. both as a deputy collector and a special deputy; but that part of it is only descriptive and not material. The charging part does not charge him in both capacities.
One word, in conclusion: Something has been said in reference to the manner in which the affairs of the custom-house were conducted while the prisoner was there. All I can see. from the evidence, as to what the collector did, was that he placed unlimited confidence in'a man who had bared his breast for his country in the shock of battle, and defended its flag amidst its smoke. This was a fault that we afi might have fallen into.
GILES, District Judge, then read the instructions to the jury: “First. If the jury shall find from the evidence in the case that at the time of the alleged embezzlement of the several sums given in the evidence the prisoner was a deputy collector in the office of the collector of this port, and as such received the said sums of money, and so received them in furtherance of a practice then prevailing in said office, and that he subsequently con voted them to his own use, he is [1212]*1212guilty upon the second, third, and fourth counts in -the indictment, or under any one or more of them in respect to which the jury shall find such leception and conversion. Second.
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GILES. District Judge
(charging jury). I think I but say what every person who has been n witness of this trial will unite with me in saying, that no case was ever more faithfully tried: the indictment was drawn up with all the care and skill which characterizes the assistant Unit ad States district attorney. of whose indictments I have quashed but one of the many which he has drawn while serving the government in that office. As to this district, no matter what may be the fact elsewhere, this case is one of first importance (for the employees of the government lor this district have been, so far as known, faithful officers), and hence it required • careful consideration. Never since I have been on the bench has a prisoner been defended more ably: the learned counsel who last addressed the court (Air. Mathews) has exhibited throughout this cause eminent ability, an ample preparation and a careful industry, which, if persevered in, must soon place him in the front rank of the profession: certainly the force and qualities which he has shown have proved him to be a worthy colleague of the other counsel (Mi. Whitney), in regard to whose characteristics in criminal cases it is unnecessary for the court to add one word of praise. He dissects a criminal case with the same coolness and skill with which Baron Larey or Surgeon Smith of this city would use the dissecting knife upon a patient strapped to his board. This case then being one o'f such great interest I have examined the [1211]*1211points involved in it with great care. The first question that arises is, “Was the prisoner an officer within the meaning of the act of 1846?" The learned counsel for the de-fence pressed the argument that he was not such an officer as would come under the provisions of that act, hut a mere employee of the custom-house, with great earnestness, and to sustain it they quoted the act of 1790 and from the Opinions of the Attomeys-Gen-eral (volume 4. p. 26): but I said then as 1 say to-day, that if any attorney-general had given such an opinion, in view of the act of 1817, that it was not law, and I found upon examination last night that no such position had been taken by Mr. Legare, of South Carolina, whose opinion my friends referred to, and that they must have been misled by reading the headnote, for that opinion of his was based upon the 22d section of the act of 1799, and he says nothing in it of the act of 1817, and no doubt was not aware of it at the time. If my friends had read on a little further they would have found that upon page 163 that eminent attorney-general sustains me in the opinion I shall deliver to-day. Before quoting this opinion, however, I will say that I find upon reference to the acts of congress that the act giving the power to collectors to appoint inspectors is in the very words of the act of 1817, whicn gives him power to appoint deputies.
GILES, District Judge, then read from the act (3 Stat. 215). calling Mr. Whitney’s attention to the fact that the word used was “employ.” and not “appoint,” after which he quoted at length from the opinion, which was in the form of a letter addressed to the secretary of the treasury, dated March 24. 1843. in relation to the character of inspectors, and which held that they were officers of the government. and came under the act of 1846. Then resuming, he said: Now. the act of 1817 gave this permanent power to the collector. and congress provided afterward an annual compensation for the officer, by the act of 1851. Therefore I look upon the deputy collector as a permanent officer of the government, who obtains his appointment from the secretary of the treasury, and remains in office aftei his superior goes out, until his (the deputy's) successor is appointed and qualified. But is he an officer within the meaning of the sulvtreasury act (the .act of 18461? q
The judge then read the sixth section of the act, calling special attention to the general words used in it: “All public officers of whatsoever kind.” These words embrace, said he. any officer of the government in whose possession the public funds may at any time be deposited, in whatever manner they be so deposited, and the sixteenth section declares it to be a felony for these officers to embezzle these funds. Now, this act makes it the duty of certain officers to keep accounts with the government, and afterward makes these accounts prima facie evi-' deuce against them on' a charge like this; but it would be doing violence to ■ the language of congress to suppose that this act was confined only to those officers who have to keep accounts with the government. I should myself have had no difficulty upon this point if it had been a new question, and should have arrived at a different conclusion upon it than the judges in Philadelphia: but it is not a new question, and I am bound by the decision of the supreme court in tne case of U. S. v. Hartwell. 6 Wall. [73 U. S.] 385, and no one can have any doubt after that decision. The officer tried in that case stood upon the same footing as a deputy collector; he was ajr-pointed under the 23d section of the act of 1866; and the supreme court says he was a public officer, and a person charged with the safe-keeping of the public money. The judge then read from the opinion of the court, and showed where it applied to the case at bar. I am aware, said he, that Justice Grier, with two others, dissented, but the opinion of the majority, delivered by Justice Swayne. binds this court, and I have no doubt from it that the deputy collector is an officer who comes under the act of 1846.
I now come to another branch of the case, and the only one upon which the United States district attorney and myself differed. Here I agree with the counsel for the de-fence, that before there can be an embezzlement there must be trust and confidence; so says the act — “moneys entrusted.” Hence I permitted the district attorney to give evidence of what the practice of the office had been at the time as to the fact that the deputy collector was permitted ro receive the public money, and that as a public oflicer he was therefore entrusted with it.
One word more: There was some objection made to the indictment, that it charges that these offences were done by General B. both as a deputy collector and a special deputy; but that part of it is only descriptive and not material. The charging part does not charge him in both capacities.
One word, in conclusion: Something has been said in reference to the manner in which the affairs of the custom-house were conducted while the prisoner was there. All I can see. from the evidence, as to what the collector did, was that he placed unlimited confidence in'a man who had bared his breast for his country in the shock of battle, and defended its flag amidst its smoke. This was a fault that we afi might have fallen into.
GILES, District Judge, then read the instructions to the jury: “First. If the jury shall find from the evidence in the case that at the time of the alleged embezzlement of the several sums given in the evidence the prisoner was a deputy collector in the office of the collector of this port, and as such received the said sums of money, and so received them in furtherance of a practice then prevailing in said office, and that he subsequently con voted them to his own use, he is [1212]*1212guilty upon the second, third, and fourth counts in -the indictment, or under any one or more of them in respect to which the jury shall find such leception and conversion. Second. And if they shall further find that in pursuance of the said office he was authorized to draw checks on the depositary for the disbursements of the office, and that as such deputy collector he drew the check given in evidence under the first count, and appropriated the same to cover a similar amount of the public money unlawfully used by him, he is guilty of embezzlement under said count. Third. That when any sum or sums of money were paid by the inspectors of hulls and engines as money by them received from engineers and pilots, under the act of 1852, and proceeds of the sale of goods forfeited to the government under the revenue laws are paid at the custom-house to the deputy collector, the said sums are public moneys, within the meaning of the act of 1846, under which the indictment is drawn. Fourth. That in considering the first count in the indictment the jury are limited to the sum of $1,120 alleged to have been embezzled on the 22d of September, 1869. and cannot take into consideration any other sum or sums alleged to have been embezzled at any other time or times, except as the jury may find such alleged embezzlement may be evidence of the intent with which the prisoner drew and used the check for the said sum of $1,120. Fifth. That the burden of proof is on the government to satisfy the jury that the prisoner did receive and convert to his own use the public moneys set forth in the several counts in the indictment, in order to warrant a verdict of guilty upon one or more of said counts.”
Subsequently, GILES, District Judge, gave the following additional instruction to the jury: “There being no evidence to sustain the fifth count in the indictment, the jury will acquit the prisoner under the count. If the jury shall find him guilty under any of the other counts, they will by their verdict ascertain the amount embezzled under such count.”
The jury returned a verdict of “Guilty” upon the first count, as to the sum of $1,120; upon the second count, as to $996.72; upon the third count, as to $50; and' upon the fourth count, as to $180. Upon the fifth count, “Not guilty.” The verdict was recorded, and the court adjourned until this morning.. After the adjournment, GILES. District Judge, said that sentence would be suspended until after the trial of the other eases, and that the case of the United States v. Colonel Wilson had been set for trial on the 16th, and the case of the United States v. Smyth for trial on the 17th. The penalty for the offence of which General Bowerman has been convicted is imprisonment for not less than six months nor more than ten years in the jail or penitentiary, as the court may direct, and a fine of double the amount of the verdict of the jury.