Alexis v. United States
| Decision Date | 05 April 1904 |
| Docket Number | 1,134. |
| Citation | 129 F. 60 |
| Parties | ALEXIS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. W Howe, U.S. Atty.
W. O Hart, for defendant.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
The indictment in this case contains two counts, each based on the last paragraph of section 5467 of the United States Revised Statutes (U.S. Comp. St. 1901, p. 3691), which is substantially as follows:
'Any such person (that is, any such post office employe) who shall steal any of the things aforesaid (that is, the contents out of any letter, packet, bag or mail of letters) 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, shall be punishable by imprisonment at hard labor,' etc.
The charging part of each of these counts was substantially, that on the 16th day of February, 1900, at the city of New Orleans, the defendant, being then and there employed in a department of the postal service of the United States, to wit, as a clerk in the post office at the city of New Orleans, did unlawfully, willfully, and feloniously steal, take, and carry away (certain articles named), all being the property of one F. M. Hamilton, and the (articles named) were then and there stolen and taken as aforesaid by the said George D. Alexis from and out of a certain package then lately 'put into the mail' of the United States at the post office in said city of New Orleans, and which then and there had come into his possession in his capacity as such clerk, as said package was directed in the tenor following, that is to say, 'John W. Francis, care of W. R. Irby & Co., New Orleans, La.,' and had not been delivered to the party to whom the same was directed, contrary to the form of the statute, etc. In the second count the articles named were different, the ownership laid the same, and the count in other respects the same, except that it alleges that the said package was directed in the tenor following; that is to say, 'Leonard Krowder, New Orleans, La.' There was a general verdict of guilty on both counts, and the accused was sentenced to imprisonment at hard labor for a term of one year and one day. This sentence does not exceed the punishment that might have been imposed on either one of the counts of this indictment.
The first, third, and fifth errors assigned relate to the admission of evidence in reference to the fact of the package having been stamped, the manner in which it was stamped, and the absence of an allegation in the count as to its having been stamped at all. These assignments are not well taken, because it was not necessary to allege that the package was stamped. Neither the language of the provision of the statute under which the indictments were found nor the reason of the statute requires any such allegation. The indictment having charged that the package then lately put into the mail had come into his possession in his capacity as such clerk was sufficient averment on that point to admit the evidence over defendant's objection taken when the evidence was offered. United States v. Hall (D.C.) 76 F. 568.
The second assignment is not well taken. It is in these words:
'Because the court erred in allowing L. S. Woods, a witness on behalf of the United States, to testify on December 20, 1901, regarding the contents of the package said to have been addressed to L. Krower, when the indictments charge defendant with abstracting, embezzling, and stealing the contents of a package addressed to L. Krowder.'
The tenth assignment presents the same question.
'A name need not be correctly spelled in an indictment, if substantially the same sound is preserved. The following are cases in which the variance between the names as alleged and as proven was at least as great as in the present, and in which it was held that the variance was not material: Bubb and Bopp (Myer v. Fegaly), 39 Pa. 429 (80 Am.Dec. 534); Heckman and Hackman (Bergmann's Appeal), 88 Pa. 120; Hutson and Hudson (Cato v. Hutson), 7 Mo. 147; Shaffer and Shafer (Rowe v. Palmer), 29 Kan. 337; Woolley and Woolley (Power v. Woolley, 21 Ark. 462; Penryn and Pennyrine (Elliott v. Knott), 14 Md. 121 (74 Am.Dec. 519). ' Faust v. United States, 163 U.S. 452, 16 Sup.Ct. 1112, 41 L.Ed. 224.
The fourth assignment of error is directed to the action of the court in not reopening the case for further evidence after the testimony had been closed. There was nothing in the affidavit accompanying the application either as to the nature of the evidence sought to be added to what had already been received, or as to the witnesses by whom it was expected to be given, or as to reason why they had not been offered sooner, to require the reopening of the taking of proof. The motion was addressed to the discretion of the trial judge, and his discretion was properly exercised.
The sixth, seventh, and ninth assignments of error are based on the refusal of the judge to give certain requested charges. So far as these requests were correct, they were given by the judge, either in certain modifications thereof that he made and gave, or in his general charge, and for this reason, and also because each of them contained matter that was either not sound or not pertinent to the proof, they were rightly refused.
The eighth error assigned is substantially embraced in the seventh.
The eleventh error assigned is because the court erred in the general charge in giving this part thereof to the jury, to wit:
'Therefore I say to you, in considering the testimony of the defendant, which, if true, entitles him to acquittal, you are to consider the very grave interest that he has at stake in this case.'
This is only the closing line of the judge's charge on this subject. This is the context:
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