United States v. Denicke

• Decision Date: 01 May 1888
• Citation: 35 F. 407
• Parties: UNITED STATES v. DENICKE.
• Court: U.S. District Court — Southern District of Georgia

35 F. 407

UNITED STATES v. DENICKE.

United States Circuit Court, S.D. Georgia, Western Division.

May, 1888

Dupont Guerry, U.S. Atty., for the Government.

Dessau & Bartlett, for defendant.

SPEER J.

The question arises in the following manner: The indictment charged that the defendant, Rudolph Denicke, postal-route agent, in the employ of the post-office department, embezzled a letter addressed to the Travellers' Insurance Company of Pittsburgh. On the trial, the prosecution proved that a letter written to the Traders' Insurance Company of Pittsburgh was mailed at Gordon by Chambers, the assistant post-master there, under the direction of Hancock, postal inspector. It contained a five-dollar bill. Chambers testified that he had no dealings with the Traders' or the Travellers' Insurance Company of Pittsburgh; that he did not wish the accident insurance policy for which the letter asked, and, so far as he knew, no such insurance company was in existence; and the district attorney thereupon admitted that the letter was written to a fictitious address. It was also in proof that the post-office inspector, Hancock promised Chambers to intercept the letter in the mail; to use the language of the witness, 'to capture' it, and return Chambers his money. At this point the letter was offered in evidence, and it appearing that it was described in the indictment as being directed to the Travellers' Insurance Company, and the letter itself being written to the Traders' Insurance Company, the defendant's counsel objected to its introduction on the grounds (1) that by the proof it was not a letter intended to be conveyed by mail, within the meaning of the statute; and (2) that there was such a fatal variance in the allegations and the proof that it must be necessarily excluded.

In the humanity of the law it is settled that a party charged with crime is presumed to be innocent until the crime is proven against him, as charged. All the substantial allegations of the prosecution must be proven as laid. This is not only elementary law, but it is wise in principle and in its results to the fairness and impartiality of criminal procedure. Not only must the statute, said to have been violated, be shown to have been broken, but the crime described, must be proven as described. Among other reasons for this doctrine are these: A person accused is entitled to have full and accurate notice of the charge against him, in order that he may know how to make his defense. Again, it is essential in the administration of justice in order to prevent two prosecutions for one and the same transaction. The defendant is charged with a violation of this law as found in section 3891 of the Revised Statutes: 'Any person employed in any department of the postal service, who shall * * * embezzle any letter intrusted to him, or which has come into his possession, and which was intended to be conveyed by mail, shall be punished * * *. ' Now, it is charged that the defendant, a person employed in the department of the postal service, embezzled a letter intrusted to him, and directed to the treasurer of the Travellers' Insurance Company of Pittsburgh, Pa., and which was intended to be conveyed by mail. Does the proof upon which the government relies, sustain these allegations? Was this letter, in contemplation of the law, a letter 'intended to be conveyed by mail? ' It is conceded that it is directed to a corporation not in existence; that the address is fictitious; that it was not desired by either of the parties who were concerned in the sending of this letter that it should be conveyed to the address specified in the indictment. It is also conceded that it was a decoy letter; that it was the purpose of the post-office inspectors to intercept, or, to use the words of the witness, to 'capture' it somewhere on its route, provided it passed the hands of the suspected party; if it did not pass his hands it was their purpose to capture it in his possession. It was not intended to be conveyed to the Travellers' Insurance Company, or to the Traders' Insurance Company; and it seems to come most clearly within the decision of Judge NEUMAN in the case of U.S. v Rapp, 30 F. 818. In that case a 'nixe'-- that is, a letter addressed to a fictitious person, or to a place where there was no post-office-- was placed in what is known as the 'nixe basket,' a receptacle for unmailable matter. This was to be forwarded to the dead-letter office. This was held by the court not to be mail matter within the meaning of sections 5467, 5469, of the Revised Statutes. It was held distinctly not to be matter intended to be conveyed by mail; and Judge NEUMAN uses this language: 'I do not believe that under this section it can be held that the packet was intended to be conveyed by mail, when the proof in this case for the government shows that there was no such intention. ' 'I must,' said the learned judge, 'construe the language of this criminal statute, by a rule of law that is axiomatic, strictly in favor of the defendant. See U.S. v. Whittier, 5 Dill. 35, and cases cited. But, considering it according to its fair and ordinary meaning, can the words 'mail matter' be held to include this package? I think not. And this last view of the matter, in my opinion, applies to both of these cases. As stated above, I think the whole of this law * * * refers to mail...