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§ 57. Fraudulently Assuming Fictitious Address or Name.
58. Lottery; Gift Enterprise, Circulars, etc., not Mailable.
59. What is a Lottery or Chance.

59a. Illustrative Cases of Chance.
60. Land Schemes.

61. Issuing Stock.

62. Other Cases Under the Lottery Statute.
63. Post Masters not to be Lottery Agents.
64. False Returns to Increase Compensation.
65. Civil Remedy to Recover Compensation.
66. Collection of Unlawful Postage.

67. Unlawful Pledging or Sale of Stamps.

67a. Receiving Stolen Property, etc.

68. Failure to Account for Postage and to Cancel Stamps.

69. Issuing Money Order Without Payment.

69a. Conviction Under One Statute, No Bar,-When.

70. Counterfeiting Money Orders, etc. and Fraudulently Issuing the Same After Having Received the Money Therefor.

71. Counterfeiting Postage Stamps, Domestic or Foreign.

72. Misappropriation of Postal Funds or Property By Use of Failure

to Deposit.

73. Rural Carriers Responsible Under Foregoing Section.

74. Stealing Post Office Property.

75. Other Minor Offenses, Including False Claims and Employees Contracts.

75a. Illegally Carrying Mail.

76. All Persons Employed in Service, Whether Taken Oath or Not, Are Employees.

§ 43. Postal Crimes. The provisions of Section 3833 that give jurisdiction to all civil and criminal causes arising under the postal laws to state and territorial courts, do not constitute such courts Federal Courts; and if either a civil or a criminal cause be instituted in the state courts involving the United States Postal Laws, such cause may be removed to the Federal Courts, under the second section of the Act of March 3, 1875. In the case of New Orleans National Bank vs. Merchant, 18 Federal, page 841, which was a bill for injunction filed in the state District Court against the United States Postmaster at New Orleans, seeking certain relief against the enforcement of the sections of the Revised Statutes relating to fraud orders, and which action was removed into the Federal Court under the second section of the Act of March 3, 1875, Circuit Judge Pardee held that while Section 3833 of the Revised Statutes confers jurisdiction upon the Courts of the State in certain instances, as

Courts of the State, yet it does not thereby make them Federal Courts, and cases instituted therein are properly removable to the Federal Court.

$ 44. How Is the Section Used.-It would seem, therefore, that 3833 is really a section of convenience. Since there are state justices of the peace and committing magistrates at nearly all points, the state or Federal officer who discovers a violation of the postal laws may instantly get a warrant therefrom without waiting to communicate with the more remote and less accessible Federal Commissioner. The accounts for the state justices of the peace and committing magistrate for services of this sort are presented for approval in open Court, just as United States Commissioners are, and are paid by the Department at Washington.

§ 45. Breaking Into and Entering Post Office.We now come to a consideration of the various sections of the Criminal Code, starting with offenses against the postal service and system, because they are the most common violation. Section 5478 of the old statutes is altered very little by Section 192 of the new Code. The words "hard labor" are left out of the new statute, but under Section 338 of the new Code, the omission of the words "hard labor" from any provision of the new Code prescribed in the punishment, is not construed as depriving the Court of the power to impose hard labor as a part of the punishment in any case where such power existed under the old statute.

The new Section also contains the following words, "with intent to commit in such post-office or building, or part thereof so used," that were not in the old statute. These words were doubtless added by the codifiers to call the attention of the pleader to the fact that Congress had no jurisdiction to prescribe a penalty for entering a building, or for committing an offense in a building, unless such building was actually used as a post-office or such offense was committed in that part of said building so used as such post-office.

In the 16 Federal, page 235, United States against Campbell, the Court sustains a demurrer to an indictment which charged forcible breaking into a building, which building was then and there used in part as a post-office of the United States, "with the intent then and there, in said building, to commit the crime of larceny." In passing upon the demur

rer, the Court said that, "a building used in part as a postoffice may contain many rooms besides the one or more used as a post-office. That there is some portion of it not so used is necessarily implied in the phrase 'used in part as a postoffice.' To break into such a building with the intent to steal the purse of the lodger in a room therein that is in no way used as a post-office, nor connected with it, except that it is under the same roof, does not appear to me to be an act which the United States may punish, upon the ground that it is necessary to do so in the execution of the power granted to Congress to establish a post-office." Mr. Justice Storey, in United States vs. Coombs, 12 Peters, 76, said: "If the section admits of two interpretations, one of which brings it within, and the other presses it beyond, the constitutional authority of Congress, it will become our duty to adopt the former construction; because a presumption never ought to be indulged that Congress meant to exercise or usurp any unconstitutional authority, unless that conclusion is forced upon the Court by language altogether unambigu

ous."

The idea, therefore, is that the statute meant to punish the breaking into a building used in part as a post-office, with the intent to commit larceny in that part of the building so used as such post-office. To the same effect is the case of in re Byron, 18 Federal, page 723; also United States vs. Williams, 57 Fed., 201; also United States vs. Shelton, 100 Fed., 831; United States vs. Martin, 140 Fed., 256; United States vs. Saunders, 77 Fed., 170.

In the 30 Federal, 232, United States vs. Lantry, the Court held that the prisoners were not entitled to the presumption that they had hidden themselves within the building, merely because they had been seen with other persons lawfully within the premises before they were closed for the night. In this same case, the Court refused, upon habeas corpus, to go beyond the finding of a Commissioner, as to the probable guilt of the prisoners, and followed the authorities of in re Fowler, 4 Fed., 303, and in re Day, 27 Federal, 678. The case of Considine vs. United States, which holds that a violation of Section 5478 is a misdemeanor, and not a felony, and, therefore, but three challenges are permitted the defendant, will not now be considered binding against defendants under the new Code, for the reason that the

punishment is felonious within the meaning of such offenses as defined by Section 335 of the new Code. Section 819 of the Revised Statutes allows the defendant charged with a felony ten challenges; therefore, one being prosecuted under Section 192 would be entitled to ten instead of three challenges.

The word "forcible" when used in a criminal statute in describing night-time or day-time burglaries, comprehends the opening of a door or the raising of a window or the raising of a latch, in fact, the use of any force in making an entry. In 74 Federal, 221, United States vs. Yennie, it was held that an entry into a postmaster's room in the post-office building, by opening the door, was a forcible entry within the meaning of the statute. This case is also interesting in that it determines that an indictment is good, even though in the same count it charges the forcible entry and the theft of the property, and that while such allegations constitute separate offenses under old Sections 5475 and 5478, yet they are offenses of the same kind and the same grade of punishment, though with different degrees of severity, and upon the authority of Com. vs. Tuck., 20 Pick., 356, the Court holds that both offenses relate to and are parts of the same transaction, and may, therefore, be included in the same count without error, though perhaps the best practice not to do so. See also Horner vs. United States, 143 U. S., 207; ex parte Peters, 12 Federal, 46.

Sorenson vs. United States, 143 Federal, 820, and Sorenson vs. United States, 168 Federal, 785, are cases arising under Section 5478, and which do not decide any point with reference to the statute or an indictment thereunder. They contain, however, some interesting questions of practice with reference to circumstantial evidence and other matters not necessary to here discuss.

$ 46. Unlawfully Entering Postal Car or Interfering with Postal Clerk, Etc.-Closely akin to the statute just discussed is Section 193 of the new Code, which inhibits entering by violence a post-office car, or any apartment in any car, steamboat, or vessel assigned to the use of the mail service, and also denominates as an offense any wilful or malicious assault or interference with any postal clerk in the discharge of his duties in connection with such car, steamboat,

vessel or apartment, and also punishes any one who shall wilfully aid or assist in either.

Neither this section, nor the substance thereof, was included in the old Revised Statutes. There was a provision largely similar passed by the Fifty-seventh Congress, as shown at page 1176 of the 32 Statute at Large. That provision has, however, been broadened by the omission of some words and the substitution of others.

A close reading of the statute indicates that the authorities that relate to entering a post-office or a building used in part as such office, cited under the old statute 5478 and under the new Section 192, would be in a large measure applicable to this section.

§ 47. Assaulting Mail Carrier with Intent to Rob, and Robbing Mail and Injuring Letter Boxes or Mail Matter, and Assaulting Carrier, Etc.-Under this heading, for convenience, is placed Sections 197 and 198 of the new Code. Section 197 is a combination of the old Sections. 5472 and 5473.

Section 198 comprehends the meat of old Sections 3869 and 5466. 3869 had already been amended by the Act shown on page 1175 of the first part of Volume 32 of the Statutes at Large, which was an act of the Fifty-seventh Congress. The present section, as it now stands, is intended to protect more certainly the numberless rural route and star route boxes and mail receptacles.

It must be understood that no mail receptacle is protected under this statute, unless the same has been established, approved, or designated by the Postmaster General. The indictment should, therefore, allege such approval, designation, and establishment, and the proof must so show. As to just what sort of proof the Court will admit, no inflexible rule can be given. The Courts understand that it is impossible to bring the Postmaster General or some informed subordinate from his office into the various Districts of the Union, and testify to such action at Washington, and they, therefore, sometimes admit the testimony of the local postmaster that the receptacle is the proper one, or sometimes they admit the receptacle itself, which has stamped thereon the words designated, established, or approved by the Postmaster General. So also, some of the printed regulations of

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