United States v. Friend
| Decision Date | 31 January 1951 |
| Docket Number | Crim. No. 268. |
| Citation | 95 F. Supp. 580 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | UNITED STATES v. FRIEND. |
A. Garnett Thompson, U. S. Atty., Charleston, W. Va., for the Government.
D. Jackson Savage, Charleston, W. Va., for defendant.
Defendant was indicted on the charge that he secreted, embezzled and appropriated to his own use and benefit the sum of $320.53 in postal funds belonging to the United States. The trial was had before the Court, after defendant had waived jury trial in writing and the United States had consented to such waiver. At the conclusion of all the evidence defendant moved for an acquittal on the ground that the evidence failed to show that he was guilty of any crime. The Court deferred action on the motion and received briefs from both the United States and the defendant.
The evidence is that defendant was a postal clerk in the post office at Clay, West Virginia. Part of his duties was to sell stamps and postal notes to the public. For this purpose there were placed in his hands stamps and postal notes in the total amount of $629.55. In the Postal Laws and Regulations advances of this type are termed "fixed credits," and the receipt which a clerk is required to sign upon receiving such an advance is called a "fixed credit receipt." Defendant signed receipts of this type when the stamps and postal notes were placed in his possession.
On the back of the receipt which defendant signed for the postal note stock delivered into his possession there appears a quotation from paragraph (d), section 8.23, Postal Laws and Regulations, which reads: "Superintendents and clerks in charge of stations and branches, wholesale and retail stamp clerks * * * shall replenish their fixed credits each day, except that post-office clerks with stocks of less than $100 may replenish their credits whenever the accumulated funds amount to one-fourth of the credit." There is also printed on the back of this receipt in bold face letters the following statement: "It is unlawful for employees to loan or make personal use of official funds or property."
From time to time defendant replenished in part the stock of stamps and postal notes in his possession; but he also from time to time used for his own purposes some of the money represented by sales of stamps and postal notes. At the time of his arrest his stock of stamps and postal notes had not been checked by the postmaster at Clay for eighteen months. His arrest resulted from the fact that two Post Office inspectors appeared at the post office at Clay for the purpose of making an inspection of the office and, as a part of that work, checked the stamps and postal notes in the hands of defendant. He stated to them that there were shortages, the amount of which he did not know, and that he had the money available to make up such shortages. The inspectors found that his total shortages amounted to $320.53. They made a routine demand that he produce the total amount of his fixed credits, and on the day following this demand he made up all shortages. Defendant's statement in evidence is that he used money from the proceeds of stamp and postal note sales without thinking of the consequences; that he felt the stamps and postal notes were his, and that all he had to do was to account for the same in stamps, postal notes or cash, when called upon to do so. He also stated that at all times he had the money necessary to make up any shortages.
The contention of defendant and the ground of his motion for acquittal is that the evidence does not show any fraudulent intent to convert the money derived from the sale of stamps and postal notes to defendant's own use, nor any intent permanently to deprive the United States of its property. It is argued that such intent is an essential element of the crime of embezzlement, and that there can be no conviction without a showing that such fraudulent intent existed.
The pertinent portion of the statute, 18 U.S.C.A. § 1711, under which the indictment was found reads as follows:
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...Withrow v. U. S., 5 Cir., 1969, 420 F.2d 1220; United States v. Berges, 170 F.Supp. 517, 518 (E.D.N.Y.1959); United States v. Friend, 95 F.Supp. 580, 582-83 (S.D.W.Va.1951).9 See note 2, supra.10 United States v. Foster, 233 U.S. 515, 34 S.Ct. 666, 58 L.Ed. 1074 (1914); Rosen v. United Stat......
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U.S. v. Morrison, 75-2347
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