United States v. Trosper

• Decision Date: 08 January 1904
• Docket Number: 124.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. TROSPER.

127 F. 476

UNITED STATES v. TROSPER.

No. 124.

United States District Court, S.D. California, Northern Division.

January 8, 1904

L. H Valentine, U.S. Atty., and George L. McKeeby, Asst. U.S Atty.

Smith &amp Ostrander, for defendant.

WELLBORN District Judge.

The grounds of said motion are alleged defects in the indictment as follows: First, failure to charge the ownership of the shirt therein described; second, failure to charge any wrongful intent upon the part of the defendant.

Defendant's contention is that the interference with the mails denounced by the first clause of section 5469, Rev. St. (U.S. Comp. St. 1901, p. 3692), under which clause the present indictment was found, must be such an asportation as would, if made of private property, constitute technical larceny. The case mainly relied on by defendant, Jones v. United States (C.C.) 27 F. 447, supports his contention, but that case, although decided by an eminent jurist, stands alone, and is directly opposed by numerous authorities of equal respectability, all holding that the section was designed solely to protect the mails, and that, while it includes larceny as understood at common law, it is not restricted to that offense, but makes criminal any unauthorized abstraction from the mails of postal matter. U.S. v. Falkenhainer (C.C.) 21 F. 624; U.S. v. Jolly (D.C.) 37 F. 108; U.S. v. Baugh (C.C.) 1 Fed. 784; U.S. v. Dorsey (D.C.) 40 F. 752; and U.S. v. Atkinson (D.C.) 34 F. 316.

The first ground of defendant's motion is disposed of in United States v. Falkenhainer, third paragraph of syllabus, as follows:

'Where the offense charged is stealing a letter containing a treasury note, it is not necessary for the indictment to allege the ownership of the note.'

In the body of the decision, Justice Brewer, then Circuit Judge, says:

'It is insisted that the purpose of Congress in this section applies to one branch of the crime of larceny; that therefore the indictment should allege the ownership and value of the property stolen, and that it was feloniously stolen, taken, and carried away. I do not so understand the purport of the section. It simply creates an offense against the postal service, and was intended to protect the sanctity of the mails, and it is entirely immaterial whether the letters taken contained anything of value whatever.'

With reference to the second ground of defendant's motion, it may be well to observe, again, that the word 'steal' in said clause is not used, as already indicated, to designate technical larceny, but means simply 'to take without right or leave,' and the use of that word in the indictment sufficiently charges wrongful intent. In United States V. Atkinson, supra, the first paragraph of the syllabus, which was prepared by the court, is as...