Foster v. United States

• Decision Date: 27 February 1919
• Docket Number: 3251.
• Citation: 256 F. 207
• Parties: FOSTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F. 207

FOSTER v. UNITED STATES.

No. 3251.

United States Court of Appeals, Fifth Circuit.

February 27, 1919

[Copyrighted Material Omitted]

J. M Foster, F. J. Looney, and W. A. Wilkinson, all of Shreveport La., for plaintiff in error.

Joseph Moore, U.S. Atty., of Shreveport, La.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

Plaintiff in error, who was the defendant in the District Court, was convicted in the Shreveport division of the Western district of Louisiana for a violation of section 225 of the Penal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1133 (Comp. St. Sec. 10395)). The defendant was postmaster at Shongaloo, La., at the time of the alleged commission of the offenses charged in the indictment. That instrument contained four counts, all based on the same transactions, and all alleged to have been violations of the different penal provisions contained in that section. The first count was abandoned by the government on the trial. The defendant was acquitted under the second, which charged embezzlement of money order funds by the defendant while postmaster at Shongaloo. The third count charged the defendant with failing or refusing to remit to or deposit in the Treasury of the United States, or in a designated depository, money order funds of the Shongaloo post office, and thereby embezzling them. The fourth count charged the defendant with having failed to account for or turn over to the proper officer or agent money order funds, when required so to do by the law or the regulations of the Post Office Department, or upon demand or order of the Postmaster General, either directly or through a duly authorized officer or agent, and having thereby embezzled them. The defendant was convicted under the third and fourth counts of the indictment, and sentenced to four years' imprisonment in the penitentiary.

The defendant first complains of the overruling of his motion to require the government to elect on which of the four counts of the indictment it would proceed to trial. Section 1024 of the Revised Statutes (Comp. St. Sec. 1690) authorizes the joinder in one indictment of several charges for the same act or transaction. The usefulness of the statute would fail, in cases where the different counts present one transaction in different forms to meet possible differing aspects of the evidence, if an election was required to be made before the evidence was presented. The matter was within the discretion of the District Judge, and his exercise of it against the motion was not only not an abuse, but was justified. Terry v. United States, 120 F. 483, 56 C.C.A. 633; McGregor v. United States, 134 F. 187, 69 C.C.A. 477; Pointer v. United States, 151 U.S. 396, 14 Sup.Ct. 410, 38 L.Ed. 208.

The plaintiff in error also complains of the overruling of his motion to quash each of the two counts of the indictment under which he was convicted. Two grounds of objection are made to the third count: That it was not charged in it that the defendant willfully and intentionally failed and refused to remit to and deposit in the post office at Shreveport, La., and that the charge was not specific enough as to what the requirements were as to making deposits, which had not been complied with. The ground of objecting to the fourth count was, in substance, the first ground interposed to the third, applied to the averments of the fourth. No specific intent is involved in either of the offenses charged in the third and fourth counts. The statute makes the failure to remit, or the failure or refusal to surrender, on demand of an authorized agent of the Postmaster General, post office funds the offense of embezzlement. The failure must be willful, and it is averred in each count to have been done 'willfully, unlawfully, and feloniously.' The word 'willful' implies on the part of a defendant knowledge and a purpose to do wrong. Its use was sufficient where the act constituting the offense was not required to be done with a specific intent. Felton v. United States, 96 U.S. 699, 24 L.Ed. 875; Potter v. United States, 155 U.S. 438, 15 Sup.Ct. 144, 39 L.Ed. 214.

The averments of the third count that Shreveport 'was then and there the designated depository of the said post office at Shongaloo, La.,' and of the fourth count, that the defendant failed to turn over to the post office inspector 'upon demand and order of the Postmaster General, made through the said A. C. Caldwell, post office inspector, the said A. C. Caldwell, post office inspector, being then and there a duly authorized officer and agent of the Postmaster General,' are good against the objection made to them that they do not say by what means the depository was designated and the post office inspector made the authorized agent of the department. The manner in which or the means by which these things were done are matters of evidence rather than of averment. The defendant could have obtained a more particular description by demanding a bill of particulars. No prejudice could have resulted to the defendant from the alleged imperfect averment, and, if imperfect, it was cured by section 1025 of Revised Statutes (Comp. St. Sec. 1691), especially when, as in this case, objection was first interposed upon the trial of the cause. Benson v. United States, 240 F. 413, 153 C.C.A. 339; Evans v. United States, 153 U.S. 590, 14 Sup.Ct. 934, 38 L.Ed. 830.

The plaintiff in error further insists that the government's proof failed to show that the post office at Shreveport was designated as a depository for the post office at Shongaloo for money order funds, and that ...