United States v. Wight

• Decision Date: 10 March 1889
• Parties: UNITED STATES v. WIGHT.
• Court: U.S. District Court — Eastern District of Michigan

38 F. 106

UNITED STATES v. WIGHT.

United States District Court, E.D. Michigan.

March 10, 1889

Syllabus by the Court

The two clauses of Rev. St. U.S. Sec. 5467, describe two separate and distinct offenses, viz.: (1) Secreting, embezzling, or destroying a valuable letter; and, (2) stealing the contents of such letter. These two clauses should be read disjunctively.

It is not necessary, in an indictment under the first clause for secreting and embezzling, to allege that the letter had not been delivered to the party to whom it was directed; nor under the second clause, for stealing the contents, to allege that the letter was intended to be conveyed by mail or mail carrier.

It is sufficient evidence that letters are 'intended to be carried by a letter carrier' that they are deposited in pillar-boxes to be carried to the post-office, although it be intended to intercept them after they have passed through the hands of a suspected employe.

It is no defense to an indictment of a post-office employe for embezzlement that the letter embezzled was a 'decoy,' addressed to a fictitious person or place, and was never intended to be delivered, nor that it was made up so as to attract attention, and indicate that it contained money.

Charles T. Wilkins, Asst. Dist. Atty.

H. M Duffield, for defendant.

Before BROWN and JACKSON, JJ.

BROWN J.

The circuit judge and myself had occasion not long since to hold that section 5467 covered the offense of secreting and embezzling valuable letters, as well as stealing their contents. U.S. v. Atkinson, 34 F. 316. A similar ruling had been made by Judge BENEDICT in U.S. v Pelletreau, 14 Blatchf. 126, although this case escaped our attention at the time. It is intimated in both opinions however, that the word 'and' might be implied to connect the two clauses of the statute, and thus remove any doubt as to the disjunctive nature of the two clauses, since the twenty-first section of the crimes act of March, 1825, from which this act was originally taken, uses that conjunction to connect the two clauses, instead of the other.

The authority of these cases is not disputed, but it is insisted that the two clauses of the section should be read conjunctively, and the proviso 'that the same shall not have been delivered to the party to whom it is directed' shall apply to both clauses. The case of U.S. v. Taylor, 1 Hughes, 514, is relied upon as decisive of this proposition, but we do not find any such point decided in that case. It was urged by counsel in defense of the prisoner that the two clauses of the section constituted but one offense, and that the indictment must in each count charge the embezzlement, and also the stealing, but this construction was regarded by the court as unsound. The words 'any such person' were held to refer only to any employe in the postal service, and not to an employe who has embezzled a letter intrusted to him in the course of his official duties. The court further held that two distinct offenses were created by the section. It is true that in delivering the opinion the learned judge remarked that 'the letter embezzled and the letter whose contents are stolen must each be intended to be conveyed by mail, and must not have been delivered to the person to whom addressed,' but he does not undertake to say that counts under the first clause must aver that the letter had not been delivered, nor, under the second clause, that they were such as were intended to be conveyed by mail or by a letter carrier. The letter embezzled must undoubtedly be embezzled before delivery to the person addressed, because it has been frequently held that the jurisdiction of the federal court ceases with the delivery of the letter to the addressee or his agent. So, a letter stolen must undoubtedly be such as was intended to be conveyed by mail or carried by a mail carrier, since the statute has clearly no application to private letters or dispatches intrusted to one person to be delivered to another, or to letters which are not a fit and proper subject of deposit in the mails. We quite agree with the conclusion of the learned judge in the Taylor Case that the section in question defines two separate offenses, and we think that a count couched in the language of either clause is sufficient.

The motion for a new trial raises a much more serious question. The letters were decoys, prepared by the detectives of the post-office department in such a manner as to indicate that they contained money. They were addressed to fictitious persons, and to non-existent places of delivery, and were deposited in different boxes in the city of Detroit, with the intent that they should be taken up by the postmen or carriers, carried to the post-office, and delivered to the defendant, and, in case he did not embezzle them, to be returned to Mr. Smith, the detective. The duties of the defendant were to sort and place in the proper receptacle in the post-office letters which did not go directly to the carriers by reason of imperfect addresses. All the letters described in the indictment came into the post-office in the usual course of business. They were laid upon the table, or put into a receptacle of which it was the duty of the defendant to examine the contents, in pursuance of a plan to test him; and it was the understanding that if any of these letters should pass through his hands they were to be taken by the superintendent of mails and returned to the detective. Defendant contends that under all the circumstances the conviction cannot be sustained, because the letters were not intended to be conveyed by mail, or carried or delivered by any mail carrier, within the meaning of section 5467. If counsel intend by this to assert that a decoy or test letter cannot be the subject of embezzlement or its contents of larceny, under this section, I can only say that 9 out of 10 convictions of post-office employes in this district for the past 30 years have been secured by means of decoys; that a large majority of the cases reported in the books were based upon decoys; and that dozens of men throughout the country are undergoing punishment for interference with this class of correspondence. Such a general consensus of opinion of the part of courts is certainly a strong argument in favor of its soundness, and since the decision of Mr. Justice NELSON in the case of U.S. v. Cottingham, 2 Blatchf. 470, and that of Mr. Justice CURTIS in U.S. v. Foye, 1 Curt. 364, we had not supposed it to be a matter of doubt. Even in the opinion of Judge HARLAN in U.S. v. Matthews, 35 F. 890, there is an explicit recognition of the propriety of making use of decoy letters for the purpose of detecting frauds upon the post-office department. There is nothing inconsistent with this in the English case of Reg. v. Gardner, 1 Car. & K. 628, or in Rathbone's Case, Car. & M. 220. Indeed, in Reg. v. Newey, 1 Car. & K. 630, note, and in Reg. v. Poynton, 9 Cox, Crim.Cas. 249, there is also a recognition of the lawfulness of test letters; and in Reg. v. Young, 1 Denison, Cr.Cas. 198, the court held unanimously that a decoy letter with a fictitious address, posted only to test the honesty of the prisoner, was...