United States v. Atkinson

• Decision Date: 19 March 1888
• Citation: 34 F. 316
• Parties: UNITED STATES v. ATKINSON.
• Court: U.S. District Court — Eastern District of Michigan

34 F. 316

UNITED STATES v. ATKINSON.

United States District Court, E.D. Michigan.

March 19, 1888

(Syllabus by the Court.)

In indictments against employes of the post-office department for embezzling and secreting valuable letters, it is not necessary to allege that the same was done with a fraudulent intent. The offense is a mere misdemeanor, and it is sufficient to set it forth in the language of the statute.

Section 5467, Rev. St., covers the offenses of secreting and embezzling valuable letters, as well as stealing their contents, and the omission of the words, 'every such person shall on conviction thereof, for every such offense,' used in section 279 of the act of June 8, 1872 is immaterial.¹

J. W Finney, for defendant.

Charles T. Wilkins, Asst. U.S. Dist. Atty., for the United States.

BROWN J.

It is insisted upon this motion that both the first and third counts, one of which charges the defendant with embezzling and the other with secreting, a letter containing an article of value, are defective in failing to allege that the act charged was done with a criminal intent. Exactly what words are necessary to be used to set forth with sufficient clearness the fraudulent intent are not stated, but presuming them to be 'feloniously' or 'fraudulently,' it is pertinent to inquire whether in the case of statutory offenses like this it is necessary to make use of them. Mr Bishop states that where a new felony is created by statute, but the statute does not use the word 'feloniously,' there is a difference of judicial opinion whether the words should be put in the indictment. 1 Bish.Crim.Proc. § 290. But many cases under this or similar statutes have held that offenses under the post-office laws are not felonious, but misdemeanors, and that, if described in the words of the statute, the indictment is sufficient. In U.S. v. Lancaster, 2 McLean, 431, the indictment was similar to the one under consideration, using only the words, 'secrete' and 'embezzle.' The indictment was held sufficient, and it was expressly stated that it was not necessary to charge that the taking was felonious. In U.S. v. Mills, 7 Pet. 138, it was held that an indictment setting forth that the defendant 'did procure, advise, and assist one to secrete, embezzle, and destroy a letter,' was a misdemeanor, and that, in such cases, it is sufficient to charge the offense in the words of the statute. The indictment was held sufficient. Later cases in the supreme court are supposed to have laid down a more stringent rule, but upon a careful examination, we think they only go to the extent of holding that all of the essential ingredients of the offense must be charged. Thus, in U.S. v. Cook, 17 Wall. 168, it is said that every ingredient of which the offense is composed must be accurately and clearly alleged; and where a statute defining an offense contains an exception in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception be omitted, it was held that an indictment founded upon the statute must allege enough to show that the accused is not within the exception; otherwise, if the language of the section defining the offense is entirely separable from the exception. The case particularly relied upon is that of U.S. v. Carll, 105 U.S. 611, in which it was held that an indictment for passing a counterfeited obligation of the United States must allege that defendant knew it...