United States v. Taylor

28 F. Cas. 19, 1 Hughes 514, 1874 U.S. App. LEXIS 1959

• Court: U.S. Circuit Court for the District of Eastern Virginia
• Decided: September 8, 1874
• Status: Published

Opinion

HUGHES, District Judge.

Section 279 of the revised postal laws, divested of the words which are inapplicable to the offence charged in the indictment in this case, is as follows: “Any person employed in any department of the postal service of the United States who shall secrete, embezzle, or destroy any letter intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail, or carried by any person employed in any department of the mail service, and which shall contain any banknote, bond, draft, promissory note, or agreement for the payment of money; any such person who shall steal or take any of the things aforesaid out of any letter which shall have come into his possession, either in the regular course of his official duties, or in any other manner whatever, and provided the same shall not have been delivered to the party to whom it is directed, every such person shall on conviction thereof, for every such offence, be imprisoned at hard labor not less than one nor more than five years.” This section contemplates and recites two distinct acts, that of embezzling the letter, and that of stealing its contents, and the question arising upon it is, whether it intends to make each of these acts punishable by the imprisonment it imposes, or, whether it intends that both acts shall be necessary to constitute one offence. If the two acts are necessary to constitute the offence punishable under the section, then this indictment is defective because it charges only the embezzling of the letter, and contains no charge of the stealing of the contents, and the verdict of guilty which has been found- on the indictment, and which therefore finds only the embezzling, is not sufficient to warrant a judgment and sentence for embezzling and stealing. It is hardly necessary to premise that (with a very few exceptions) there are no offences against the United States cognizable by the national courts, except such as are made so by express law of congress, and that any such offence, in order to be punishable, must be brought by the indictment strictly within the terms of the express law, and that no law of congress can be held to embrace an offence against the United States merely from the fact, that, otherwise, the offence would go unpunished. The offence must be expressly created by law, and must be distinctly charged in the indictment.

At the trial of this cause I was strongly of opinion that section 279 of the amended law of 1872, was at least ambiguous, and that the motion in arrest of judgment might be sustained on that ground alone, for there is no more obvious principle of natural justice than that the laws creating offences, mala prohibits, ought to be plain, cigar and unequivocal. As this case will constitute an important precedent, and it was desirable that it should be decided upon mature deliberation, I adjourned the motion and the term of the court over until this occasion, partly in the hope that the circuit judge might be present, and aid in settling the question arising upon the law for this circuit. The question, as before stated, raised by the motion in arrest of judgment, is, whether section 279 makes the act of embezzling the letter, and the act of stealing its contents, each punishable by imprisonment for from one to five years; or, whether, under the peculiar language of the section, 6oth acts are necessary to constitute the offence made punishable. It was contended in argument, that the whole of the first part of the section, down to the phrase “any such person,” is descriptive of the person chargeable with the offence, and that the words any such person refer to the person who has secreted, embezzled or destroyed the letter described, and not merely to a person “employed In any department of the postal service.” If this be so, then every indictment framed upon this section must recite the embezzling, and also charge the steal-.ng, and the verdict must find both facts, in order to warrant a judgment and sentence of imprisonment.

This construction, however, cannot be adopted by the court. It is plain from the whole context, that this part of the section retains,, since the amendment, the meaning which it had before, and which it has been construed to have, ever since it was adopted into our penal code from that of England, in 1825. The object of this first part of the section is, not to describe a person, but to define an offence, that of secreting, embezzling, or destroying a letter intended to be conveyed by mail, and coming into the possession of the postal employé in the regular course of his official duties. The word “such” in the phrase “any such person,” has always been held, and must still be held, to refer only to an employé in the postal service; and has never been, and cannot now be, held, to refer comprehensively to an employé who has embezzled a letter intrusted to him in the course of his official duty. A proper means of testing the true meaning of the whole section, is by inquiring whether the section makes it necessary that the same person who embezzles the letter shall also steal its contents, and that the letter be the same as the one whose contents were stolen, in order to complete the offence made punishable. The person who embezzles and the one who steals, must in either case, be an employé of the department of the postal service. The letter embezzled and the letter whose contents are stolen, must each be intended to be conveyed by mail, and must not have been delivered to the person to whom addressed. So far, the person and the letter may be the same in each case. But the section evidently contemplates that the employé who embezzles may be other than the em-ployé who steals, and that the letters may be different, in providing that the embezzled letter must come into the possession of the employé in the course of his official duties; while it provides that the letter whose contents are stolen, may come into the employé’s possession, either “in the regular course of his official duties,” or “in any other manner whatever.” That the employé who embezzles may be a different person from the one who steals, and that the letters may be different, is also implied- in the whole tenor of the two clauses of the section. This being so, the section in first reciting that any employé who embezzles, and then reciting that any employé who steals, without coupling the two clauses by the conjunctive word “and;” and in finally following up the two distinct recitals with the declaration that “every such person,” “for every such offence” shall be imprisoned, etc., seems to put to rest all doubt of its intention and to create two distinct offences, each punishable by imprisonment. This reasoning is rendered conclusive by the reflection, that if the section in its amended form had been intended to make the embezzling and the stealing together, one statutory offence, it would have adopted the direct method of doing so, by uniting the two acts in the same clause, and declaring that any employé in the postal service who shall secrete, embezzle, or destroy a letter containing a thing of value, and steal its contents, shall be punished, and would not have first elaborately defined the offence of embezzling, and then, in a different clause, as elaborately defined that of stealing..

For these reasons, and others which might be adduced, I am bound to conclude that congress, in revising the postal laws in 1872, did not intend to destroy the original meaning of the section of which the present section 279 is a revisal. which made two offences of embezzling a letter, and stealing its contents, each punishable by imprisonment. As the indictment, therefore, sufficiently charges the embezzlement, and a verdict of guilty has been found upon it, and as the statute makes the embezzling alone punishable by imprisonment, the motion in arrest of judgment must be overruled, which is accordingly done.