Martin v. United States

Decision Date13 March 1909
Docket Number2,728.
Citation168 F. 198
PartiesMARTIN v. UNITED STATES.
CourtU.S. Court of Appeals — Eighth Circuit

(Syllabus by the Court.)

One of the clerks of the commissioner to the Five Civilized Tribes employed at a salary of $1,200 a year under authority granted by Congress to the Secretary of the Interior to employ all assistance necessary to perform the duties of the commissioners to those tribes, was not an officer of the United States, and was not punishable under section 5408 Rev. St. (U.S. Comp. St. 1901, p. 3658), which provides that 'every officer having the custody of any record document, paper, or proceeding, * * * who fraudulently takes away, or withdraws, or destroys any such record, document, or paper,' shall suffer the penalties there prescribed.

'Custody' means keeping, and implies responsibility for the protection and preservation of the person or thing in custody.

A document in a public office in the general custody of a commissioner and in the particular custody of his chief clerk, under whom five or six subordinate clerks are employed who have access to it in order to discharge their duties, is not in the custody of one of the latter.

The words 'takes away or withdraws' in this section, which subjects an officer who 'fraudulently takes away or withdraws, or destroys, a record, or document, ' must be read with the word 'destroys,' and they mean a taking away or withdrawal whereby some injury is intended, attempted, or inflicted upon the record or document, or upon some one who has an interest in it and is entitled to use it.

An attempt or an intent to injure or alter the rights or interests of another, or an effect to so injure or alter some of them, is essential to a fraud, and, in the absence of such an intent, attempt, and effect, an act cannot be done fraudulently under this section.

An allegation that an act innocent in itself but criminal if done 'fraudulently' was performed fraudulently, or with an intent to defraud, without the averment of any acts or facts tending to show fraud, is a legal conclusion and futile. It is insufficient to charge the offense of fraudulently taking away or removing a record or document under section 5408, Rev. St. (U.S. Comp. St. 1901, p. 3658).

The crime and every ingredient of which it is composed must be clearly and accurately alleged in the indictment.

Where the statute does not 'fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute an offense intended to be punished,' an indictment in the words of the statute is insufficient.

A penal statute which creates and prescribes punishment for an offense committed by a specific class must be strictly construed.

One who was not beyond reasonable doubt within the class by the express terms of the statute may not be brought within it after the event by interpretation.

Ex post facto law by judicial construction is as pernicious as ex post facto legislation.

William T. Hutchings and Henry E. Asp (Geo. A. Murphey and Wm. P. Z. German, on the brief), for plaintiff in error.

William J. Gregg, U.S. Atty.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

SANBORN Circuit Judge.

The defendant below was convicted and sentenced to imprisonment at hard labor for a year and a day, and to pay a fine of $100 and costs, under section 5408, Rev. St. (U.S. Comp. St. 1901, p. 3658), because he withdrew from the office of the commissioner to the Five Civilized Tribes a roll containing the names of citizens by blood of the Creek Nation of Indians, hereafter called the 'Creek roll,' and during nights and Sundays, when it was not needed or used in the office, made a copy of it. The provisions of the acts of Congress relevant to the issues in this case are:

'Sec. 5403. Every person who willfully destroys or attempts to destroy, or, with intent to steal or destroy, takes and carries away any record, paper, or proceeding of a court of justice, filed or deposited with any clerk or officer of such court, or any paper, or document, or record filed or deposited in any public office, or with any judicial or public officer, shall, without reference to the value of the record, paper, document, or proceeding so taken, pay a fine of not more than two thousand dollars, or suffer imprisonment, at hard labor, not more than three years, or both. ' U.S. Comp. St. 1901, p. 3656.
'Sec. 5408. Every officer, having the custody of any record, document, paper, or proceeding specified in section fifty-four hundred and three, who fraudulently takes away, or withdraws, or destroys any such record, document, paper, or proceeding filed in his office or deposited with him or in his custody, shall pay a fine of not more than two thousand dollars, or suffer imprisonment at hard labor not more than three years, or both; and shall, moreover, forfeit his office and be forever afterward disqualified from holding any office under the government of the United States.'

The commissioners to the Five Civilized Tribes were authorized 'to employ, with approval of the Secretary of the Interior, all assistance necessary for the prompt and efficient performance of their duties,' and the Secretary was permitted to detail clerks to aid the commission. Act June 28, 1898, c. 517, Sec. 20, 30 Stat. 502. The defendant had been employed as a clerk by the commission under this authority at a salary at $75 per month, and had been promoted to be a clerk at $100 per month, and that change had been approved by the Secretary of the Interior in April, 1904. By the act of March 3, 1905, c. 1479, 33 Stat. 1060, Congress devolved the unfinished work of the commission upon the Secretary of the Interior, and granted to him all the powers of the commission subsequent to July 1, 1905. Thereafter Tams Bixby became the commissioner to the Five Civilized Tribes, and Wm. O. Beal was his secretary. Thereupon, after July 1, 1905, the commissioner made a schedule of all his employes, including the defendant, which the Secretary of the Interior approved on September 27, 1905, and on October 2, 1905, the defendant took and subscribed the oath, a copy of which may be found in section 1757 of the Revised Statutes (U.S. Comp. St. 1901, p. 1202), as did the stenographer, the janitor, and the other employes of the commissioner.

There were five copies of the Creek roll, one in the office of the Secretary of the Interior at Washington, one in the office of the Commissioner of Indian Affairs at Washington, and three in the offices of the commissioner to the Five Civilized Tribes at Muskogee, one with the Creek enrollment division, one in the Creek land office, and one reserved for delivery to the principal chief of the Creek Nation. The roll in the Creek land office was the one which the defendant took away and copied in the early part of the year 1906. At that time W. S. Hawkins was the chief clerk in charge of that office. The Creek roll in that office was in the custody of this chief clerk, and he was responsible for it to the commissioner, who had the general custody of it. The defendant was one of six or seven clerks under Hawkins in this Creek land office, and Hawkins had authority to assign him to any clerical work to be done in and about the office. These six or seven clerks and the janitors had access to this roll.

The defendant was allotment clerk, and his duties were to receive applications for allotments. He had no use for this roll in the discharge of his duties, because the names for him to allot the lands by were furnished to him by the enrollment division. This roll was kept in the vault at night, and it was not one of the duties of the defendant, but it was one of the duties of the janitor, to bring the roll out in the morning and to carry it back at night. The defendant took this roll out of the Creek land office after office hours, copied it nights and Sundays, returned it in each case so that it was in the office during the hours when the clerks and officers desired to use it, and when the copy was completed finally returned it without injury. Upon this state of facts the Court of Appeals of the Indian Territory held that the defendant was an officer of the United States, that he had the custody of this roll, and that he fraudulently took it away or withdrew it, and it affirmed the judgment below. The defendant has assigned these rulings as error:

1. If the defendant was not an officer of the United States, it was no offense for him to withdraw the Creek roll and to make a copy of it. The offense of which a person who is not an officer may be guilty under the statutes of the United States in this regard is defined by section 5403, which provides that it is only when such a person 'willfully destroys, or attempts to destroy, or with intent to steal or destroy, takes and carries away' such a document, that he becomes liable to punishment, and the defendant was guilty of none of these things. But if he was an officer, if he had the custody of the Creek roll, and if he fraudulently took away, withdrew, or destroyed it, he forfeited his office, became forever disqualified from holding any office under the government of the United States, and he is subject to imprisonment and fine under section 5408. In the absence of this section, the act of the defendant was neither legally nor morally wrong. The punishment it prescribes is severe, and a penal statute which creates and denounces a new offense should be strictly construed. The definition of such an offense and the classification of the offenders are legislative and not judicial functions.

An act which is not by the expressed will of the Congress an offense may not be made so after its commission by a broad construction of the statute...

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