United States v. Baugh

• Decision Date: 01 January 1880
• Parties: UNITED STATES v. BAUGH.
• Court: U.S. Court of Appeals — Fourth Circuit

1 F. 784

UNITED STATES v. BAUGH.

United States Circuit Court, E.D. Virginia.

January, 1880

Motion in arrest of judgment, after verdict, upon prosecution by information for a violation of section 5467 of the Revised Statutes.

The information charged 'that John G. Baugh, late of the city of Richmond, heretofore, to-wit, on the twenty-third day of November, A.D. 1879, at the said city of Richmond, within the said eastern district of Virginia, he, the said Baugh, then and there being a person employed in the postal service of the United States, to-wit, as a letter carrier at the post-office at the said city of Richmond, unlawfully did embezzle, secrete and destroy a certain letter addressed to Messrs. Cowardin & Ellyson, at Richmond aforesaid, and which said letter was then and there in the said post-office, and was intended to be conveyed by mail, and then and there had not been delivered to the said persons to whom it was addressed, and which said letter then and there came into the possession of him, the said Baugh, and which said letter then and there contained articles of value, to-wit, two legal tender treasury notes of the United States, each of denomination of one dollar, and each of the value of one dollar, and the said treasury notes the said Baugh did then and there take from the said letter, and did then and there take and steal the same, against the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

L. L Lewis, District Attorney, for the United States.

A. M Keiley, for accused.

HUGHES J.

This is an information for the embezzlement of a letter. The offence is statutory, and the information must charge such an offence as the statute defines. It is not the taking and secreting of any letter that constitutes the statutory crime. Under the terms of this law, that only is embezzlement where the letter is in postal custody; is not yet delivered to the person to whom it is addressed; contains some one of the valuable things named in the statute; and this valuable thing is taken out of the letter or stolen. This same section of the Revised Statutes also makes the act of taking this valuable thing out of the letter, or stealing it, an offence. In the case of the U.S. v. Taglor, 1 Hughes, 514, I held that there might be a prosecution for taking or stealing a valuable thing out of a letter in postal custody and also a prosecution for embezzling the letter itself-- two prosecutions in respect to the same letter, either against the same person, or against one person for embezzling the letter, and against another person for taking the valuable thing out of it, or stealing that thing, if the facts should justify the two proceedings. If prosecuting for the embezzlement, the pleader would alleged the stealing by way of description only. If prosecuting for the taking or stealing, he would allege the embezzlement of the letter by the accused or some other person merely by way of description.

In the case at bar the government prosecutes only for the embezzlement of the letter, and alleges the stealing or taking of its contents only by way of description. Accordingly, the information, after charging the embezzlement, goes on by words of description to set forth that the letter was such as is defined by the statutes; and, amongst other things, that it contained two treasury notes, and that these notes were taken out of the letter and stolen. These latter words are not employed in the technical form usual in charging a larceny, because the information is not for the offence of larceny, but distinctly and only for that of embezzlement; and the taking or stealing of the notes is alleged by way of description for the purpose of bringing the offence fully within the terms of definition employed by the statute. If it were, indeed, an information for the common law offence of larceny, (an offence rarely prosecuted in the United States courts,) then it would, no doubt, be defective in not alleging an adverse ownership of the two treasury notes in some person other than the accused.

Having premised this much, I come now to consider particularly the grounds on which the motion...