Clark v. United States

• Decision Date: 12 November 1920
• Docket Number: 3375.
• Parties: CLARK v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

268 F. 329

CLARK v. UNITED STATES.

No. 3375.

United States Court of Appeals, Sixth Circuit.

November 12, 1920

T. D Fletcher, of Chattanooga, Tenn., for plaintiff in error.

W. T Kennerly, U.S. Atty., of Knoxville, Tenn.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

The plaintiff in error was convicted in the District Court of the United States for the Eastern District of Tennessee, upon the first count in an indictment charging him with unlawfully and feloniously stealing or purloining a certain voucher or pay check No. 9191, dated November 15, 1918, amounting to $44.80 and drawn upon the Hamilton National Bank in favor of A.N Fears, a mail carrier in the employ of the United States, and working in the city of Chattanooga, and out of the Chattanooga post office. Said check being signed by T. Charlton Howell, postmaster, and countersigned by John C. Shelton, assistant postmaster, at Chattanooga, Tenn., which voucher or check at that time had not been delivered to the payee named therein, but was then and there the property of the United States, and in its possession.

The plaintiff in error relies for reversal upon two assignments of error: (1) There was no evidence to support the verdict. (2) The court erred in failing and refusing to direct the jury to return a verdict of not guilty.

This first count of the indictment charges an offense under section 47 of the Criminal Code of the United States (Comp. St. Sec. 10214), which in part reads as follows:

'Whoever shall embezzle, steal or purloin any money, property, record, voucher or valuable thing whatever of the moneys, goods, chattels, records, or property of the United States shall be fined,' etc.

It is contended on the part of the plaintiff in error that:

'An unindorsed and undelivered check has no other value to the drawer than a blank check would have, unless such special value is alleged and proved, and the obligation expressed on such check is not the subject of larceny.'

This contention might obtain if it were necessary or proper to apply the common-law definition of larceny to the crime charged in this indictment. In the case of U.S. v. Davis, 5 Mason, 356, Fed. Cas. No. 14,930, the indictment charged a larceny under section 16 of chapter 9 of the Laws of 1790 (1 Stat. 112), which provided that:

'If any person * * * shall take and carry away, with an intent to steal or purloin, the personal goods of another.' In that case it was properly held that the common-law rule of interpretation should be applied; that:

'In the strict sense of the common law, personal goods are goods which are movable, belong to, or are the property of some person and which have an intrinsic value; that bonds, bills, and notes which are choses in action, are not esteemed by common law goods whereof larceny may be committed.'

But, even under the common-law rule, conviction would be sustained if the paper itself had any intrinsic value, no matter how small that value might be. This question is fully discussed and authorities cited in the case of Jolley v. U.S., 170 U.S. 402, at page 407, 18 Sup.Ct.at page 626, 42 L.Ed. 1085. In the case of Keller v. U.S. (C.C.A. 7) 168 F. 697, 94 C.C.A. 368, it was held that six blank checks, with stubs attached, each of the value of one cent, constituted property, the subject of larceny, under Revised Statutes, Sec. 5456. ^[1] Section 5456 of the Revised Statutes is now section 46 of the Criminal Code, which in part reads as follows

'Whoever shall rob another * * * of personal property belonging to the United States or shall feloniously take and carry away the same, shall be fined,' etc.

Section 47 of the Criminal Code relates to the same subject-matter and defines a crime kindred in its nature to the crime defined in section 46, and is therefore subject to the same construction, as to the value of the thing taken, as the construction given section 46 in the case of Keller v. U.S., supra. The fact that time and labor had been expended upon this check by an officer of the United States, at the expense of the United States, in preparing it for the purposes for which it was intended, would certainly not make the check less valuable to the United States than a blank check, nor would the government be required to show that it was of the value of the amount written therein. If it was of any value whatever to the United States, then, in that respect, the verdict of guilty would be fully sustained by the evidence.

However counsel for plaintiff in error insists that, even if this check had an intrinsic value, that value was so trifling that the punishment inflicted is so severe as to be wholly out of proportion to such a trivial offense. The intrinsic value of the check before a delivery is of comparatively small importance in determining the criminal intent or the moral turpitude involved in the commission of the crime charged in the indictment. This defendant, if he stole the check, was not stealing it for the value of the paper upon which it was written. He was stealing it for the purpose of unlawfully securing the sum of $44.80, that did not belong to him, and, even if it were necessary to have recourse to the intrinsic value of the paper upon which the check was written as a basis of this prosecution, its value is by no means the measure of his guilt. In many cases of a seemingly trivial nature, the evidence may disclose a criminal intent and purpose, demanding the severest penalty authorized by the law for such offenses. In other cases, appearing by the...