United States v. Brown

24 F. Cas. 1271, 1 Mason C.C. 151

Opinion

STORY, Circuit Justice.

The act of congress declares, that every person, who shall purchase from a soldier his arms, uniform, clothing, or any part thereof, shall, on conviction, be’ liable to a limited fine or imprisonment, at the discretion of the court having cognizance of the offence. To bring the case within the statute, it is not necessary, that the arms should be strictly the absolute property of the soldier; for then the act would have no effect, as the arms used by the soldiers in the public service belong to the United States. It is sufficient, if the soldier have a special property therein by a bailment in the course- of the service; or have a lawful possession, using them as his own in the duties of the service. But if his possession be unlawful, or obtained by larceny, the arms are not in the sense of the act, “his arms.” It may be a blot in the act (and unfortunately there are many blots in our Criminal Code) but it is competent only for the legislature to cure the defect.

Verdict for plaintiff.