United States v. Swan.

• Citation: 7 N.M. 306,34 P. 533
• Parties: UNITED STATESv.SWAN.
• Decision Date: 30 September 1893
• Court: New Mexico Supreme Court

7 N.M. 306

34 P. 533

UNITED STATES

v.SWAN.

Supreme Court of the Territory of New Mexico.

Sept. 30, 1893.

Error to district court, second district; W. D. Lee, Judge.

A. M. Swan was convicted of embezzlement as postmaster, and brings error. Reversed.

Under Supp.Rev.St.U.S. c. 144, § 1, providing that persons embezzling any money of the United States shall be deemed guilty of a felony, a postmaster convicted of embezzling from the money-order funds is guilty of a felony, such money belonging to the United States; Rev.St. § 4045, 39 U.S.C.A. § 736, providing that all such funds shall be deemed to be in the national treasury.

Bernard S. Rodey, for plaintiff in error.

Eugene A. Fiske, U. S. Dist. Atty.

O'BRIEN, C. J.

The defendant below, A. M. Swan, was indicted, as postmaster at Gallup, for the embezzlement of five hundred and sixty-odd dollars, alleged to belong to the money-order funds of the postal department of the United States. He entered a plea of not guilty, was tried and convicted, (the jury finding the amount embezzled to be $139,) and was thereupon sentenced to pay a fine of $200. The cause is here for review upon writ of error. The indictment was drawn under the provisions of section 4046 of the Revised Statutes of the United States, the portions of which, pertinent to the disputed points involved in the case, are as follows: “Every postmaster *** employed in or connected with the business or operation of any money-order office, who converts to his own use, in any way whatever, or loans, or deposits in any bank, except as authorized by this title, or exchanges for other funds, any portion of the money-order funds, shall be deemed guilty of embezzlement; *** and any failure to pay over or produce any money order funds intrusted to such person, shall be taken to be prima facie evidence of embezzlement; and upon the trial of any indictment against any person for such embezzlement, it will be prima facie evidence of a balance against him to produce a transcript from the money-order account books of the sixth auditor.” The chief errors urged by plaintiff in error to secure a reversal of the judgment are, in substance: First, the admission in evidence, over defendant's objection, of the certified transcript from the money-order account books of the sixth auditor of the treasury, purporting to show the balance due from the defendant to the postal department; second, separation of the jury before they had agreed upon a verdict, after the cause had been submitted.

In view of the animated controversy between respective counsel in the court below as well as in this court as to whether the offense charged is a felony or a misdemeanor, before proceeding further, we hold that the offense is a felony; not because the territorial enactments declare similar crimes felonies under the laws of the territory, but because congress has so designated the crime of embezzlement. It is provided by chapter 144, sec. 1, Supp. Rev. St. U. S., “that any person who shall embezzle *** any moneys of the United States shall be deemed guilty of felony,” etc. The indictment is predicated upon the fact that the money in controversy-post-office money-order funds-belongs to the United States. Indeed, there can be no doubt about the correctness of this proposition, in view of the language of section 4045 of the Revised Statutes of the United States, providing that all such funds shall be deemed to be in the national treasury. Defendant's counsel tries to support with much force and earnestness his first assignment of error. He insists that the certified transcript from the books in the office of the sixth auditor, showing a balance due from the defendant as postmaster to the postal department, was erroneously admitted in evidence, and that his conviction, mainly supported by such proof, was illegally procured. Such copy, at common law, would be inadmissible as evidence in any case, civil or criminal. But congress has declared, in the act creating or defining the offense, that a “transcript from the money-order account books of the sixth auditor, shall be prima facie evidence of a balance,” and we fail to find anything violative of defendant's rights in such enactment. Documentary evidence, when pertinent and material, may be as competent upon the trial of criminal as upon the trial of civil causes; and it is not disputable that, when the original is competent, congress may give the like effect to a transcript or copy. Were such not the case, the conviction and punishment of many guilty persons, especially if public officers, would often be impracticable. It is true, the constitution of the United States-so confidently invoked by defendant's counsel in his brief as well as in his oral argument in support of his contention-provides “that in all criminal prosecutions the accused shall enjoy the right *** to be confronted with the witnesses against him,” but clearly no one ever seriously contended, at least before, that under this provision none but oral testimony is admissible upon the trial of criminal causes. The record does not disclose upon what ground objection was made to the admission of the transcript. Counsel must have meant-for that is the burden of his oral argument before this court-that all written or documentary evidence is inadmissible against a defendant upon a criminal trial. In support of this position he cites the provision of the federal constitution above set out. But that can have no such meaning. It is a mere formal protest and guaranty against certain abuses that had been practiced before the court of star chamber, and perhaps other tribunals, in England and other countries, wherein witnesses were required, or at least allowed, to testify in the absence of the accused. But manifestly it does not mean that in the trial of a person charged, for instance, with the crime of polygamy, the official record of the marriages is inadmissible on the ground that oral testimony only is competent to establish the fact of marriage. The money-order account books of the several money-order post offices are kept by sworn...