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property, except as authorized by law, any money or property coming into his hands or under his control, in any manner whatever, in the execution or under color of his office, employment, or service, whether the same shall be the money or property of the United States or not; or shall fail or refuse to remit to or deposit in the Treasury of the United States, or in a designated depository, or to account for or turn over to the proper officer or agent, any such money or property, when required so to do by law or the regulations of the Post-office Department, or upon demand or order of the Postmaster General, either directly or through a duly authorized officer or agent, shall be deemed guilty of embezzlement and every such person, as well as every other person advising or knowingly participating therein, shall be fined in a sum equal to the amount or value of the money or property embezzled, or imprisoned not more than ten years, or both. Any failure to produce or to pay over any such money or property, when required so to do as above provided, shall be taken to be prima facie evidence of such embezzlement and upon the trial of any indictment against any person for such embezzlement, it shall be prima facie evidence of a balance against him to produce a transcript from the account books of the Auditor for the Post-office Department. But nothing herein shall be construed to prohibit any postmaster depositing, under the direction of the Postmaster General, in a national bank designated by the Secretary of the Treasury for that purpose, to his own credit as postmaster any funds in his charge, nor prevent his negotiating drafts or other evidences of debt through such bank, or through United States disbursing officers or otherwise, when instructed or required so to do by the Postmaster General for the purpose of remitting surplus funds from one postoffice to another."

It supplants and takes the place of 4046 and 4053, Revised Statutes of 1878. The prosecution frequently comprised in one indictment against the same defendant violations of the two old statutes, laying a count under 4046 and then a count under 4053. These statutes are for the purpose of affording another guaranty that the government shall take no chances whatever in the result of the judgment of its employees. A postmaster or a postal employee may be honest, and intend to only temporarily use the funds that belong to the Government which are in his custody or possession, but such honest intent with reference to the subsequent replacing is no protection against prosecution under this statute. Any use or appropriation or the failure to deposit, as re

quired by the regulations, constitutes embezzlement within meaning of this section. The Act not only protects money, but it likewise protects any property that may belong to the Postal Department.

The law of embezzlement is statutory. It originated in a bungling attempt to amend the Common Law of larceny, and is indeed a sort of statutory larceny. The methods of use or appropriation, therefore, denounced in the statute, are sufficient to describe this particular statutory embezzlement. In United States vs. Gilbert, 25 Federal Cases No. 15205, the Court used the following language:

"It is evident that an embezzlement such as is contemplated by this section may be proved in either one of two ways: first, by showing that in point of fact the postmaster has converted to his own use money order funds; second, by his failure to pay over such funds when required either by the law or regulations, or when demand is made by an officer authorized for that purpose...... Although it is true that the funds were subsequently paid into the post-office, and although it may also be, and probably was, true that these funds, when thus converted, were intended and expected to be replaced, so that the Government should sustain no loss, which goes very far toward mitigating the offense, yet it is obvious that the enforcement of this section in all its strictness is essential to this class of government funds, and to the discouragement of postmasters from even temporarily using them for private purposes. The intention of replacing them, however honestly entertained, cannot be accepted as an excuse or apology for violating the law, as one may be disappointed by unexpected circumstances, and thus not only endanger the moneys of the Government, but involve himself in difficulty and criminal prosecution. The law intends that funds of this character should be kept absolutely separate and sacred, as the best method, not only of keeping the funds themselves secure, but of guarding the officers themselves from temptation and delinquency. A diversion of money order funds in any way whatever prohibited by this section, or for any time, however short, constitutes embezzlement under this Act."

See also United States vs. Royer, 122 Federal, 844, which applied the doctrine of refusing to permit the postal employee to use Government money order funds in the payment of private debts by issuing money orders upon blanks in the employee's possession; also Vives vs. United States, 92 Federal, 355. The indictment, under this section, must allege

that the funds were intrusted to the employee, so as to show the fiduciary capacity. U. S. vs. Royer, 122 Federal, 844. It will be noticed that the Act provides that a transcript from the account books of the Auditor for the Post-office Department, showing a balance against the officer, shall be prima facie evidence of such embezzlement. This provision, while seemingly harsh, is salutary; for otherwise, the officer could contend that as a matter of fact there was no balance against him, during which period of ascertainment he could be enjoying the use of the funds. In United States vs. Swan, 7 N. M., 311, that portion of the statute was held to be constitutional, and the Court there held that this provision was not in conflict with that section of the Constitution which provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. See also Faust vs. United States, 163 U. S., 454; 41 Law Ed., 224.

In an indictment against a public officer for embezzlement of public funds alleged to have been in his possession as such officer, the rule applied that it is sufficient to charge that he embezzled same, without more, see U. S. vs. Mason, 179 Federal, page 552, which case also holds bill sufficient which specifies amount of money and states grand jury is unable to give further information of description.

In United States vs. Young, 25 Federal, 710, the Court passes upon a state of facts, and concludes that they indicate that the prisoner was an adroit criminal rather than an insane man, and, therefore, fixed responsibility upon him for the temporary use of Government money, under this statute. It must also be borne in mind that in indictments under this section, against employees of the postal service other than postmasters, it is not necessary to allege nor to prove the want of consent of a postmaster to the embezzlement of money order funds. Foust vs. United States, 163 U. S., 454; 41 Law Ed., 224. It must also be remembered that indictments under this section, under the authority of Moore vs. United States, 160 U. S., 269; 40 Law Ed., 424, must allege that the funds came into the possession of the defendant in his official character and by virtue of such employment, and specifically set out the sort of employment he was engaged in for the Government.

§ 73.

Rural Carriers Responsible Under This Section. In United States vs. Mann, 160 Federal, 552, District Judge Speer held that the post-office regulations authorizing rural letter carriers to take and receipt for money from patrons of their routes, to purchase and forward money orders to the persons for whom they are designed, did not make the money so received and receipted for by rural carrier from patrons of his route, to be used in the purchasing and forwarding of money orders, while in the possession of such carrier, and before surrender at the post-office, "money order funds," for the embezzlement of which the carrier could be prosecuted under Section 4046. This was the construction placed upon the statute with reference to embezzlements by rural route carriers by many of the trial courts, though there was some difference of opinion. It became and was, however, very necessary that such funds should be protected, and the provision in the new section which protects the money "or property coming into his hands, or under his control in any manner whatever, in the execution or under color of his employment or service, whether the same shall be the money or property of the United States or not," clearly protects all such funds, and gives to the statute a color and meaning badly needed.

The reasoning with reference to allegations in the indictment in Dimmick vs. United States, 121 Federal, 638, though upon Section 5492 rather than the one under discussion, may be interesting, because under that statute, similarly worded, the Circuit Court of Appeals for the Ninth Circuit held that the jury must find, in order to convict the defendant, that the failure to deposit was intentional and wilful, and that these words intentional and wilful must be read into the statute.

$ 74. Stealing Post-office Property.-Section 190 of the new Code enlarges the punishment, and simplifies old Section 5475, and reads as follows:

"Whoever shall steal, purloin, or embezzle any mail bag or other property in use by or belonging to the Post-office Department, or shall appropriate any such property to his own or any other than its proper use, or shall convey away any such property to the hindrance or detriment of the public service, shall be fined, not more than two hundred dollars, or imprisoned not more than three years, or both."

The indictment under this section simply contains the ordinary elements for the charging of statutory theft, or Common Law larceny. That portion of the statute which relates to the use of any property demands in the bill of indictment to properly plead the offense the use of the word showing intent and wilfulness. An innocent use or mistaken use under this section it is not thought would be an offense. In United States vs. Yennie, 74 Federal, 221, the Court held that a count might be laid under this Section and a count under 5478 in the same indictment, without being duplicitous. See 67a.

75.

Other Offenses.-The new Code, in addition to the offenses heretofore mentioned, creates and re-enacts sections relating to the following:

Conducting Post-office without authority: Section 179, old Revised Statutes 3829.

Illegal carrying of mail by carriers and others: Section 180, old Section 3981.

Conveyance of mail by private express forbidden: Section 181, old Section 3982.

Transporting persons unlawfully conveying mail: Section 182, old Section 3983.

Sending letters by private express: Section 183, old Section 3984.

Conveying of letters over post roads: Section 184, old Section 3985.

Carrying letters out of the mail, on board a vessel: Section 185, old Section 3986.

When conveying letters by private person is lawful: Section 186, old Section 3987.

Wearing Uniform of carrier without authority: Section 187, old Section 3867.

Vehicles, etc., claiming to be mail carriers: Section 188, old Section 3979.

Deserting the mail: Section 199, old Section 5474:

Delivery of letters by master of vessel: Section 200, old Section 3977.

Vessels to deliver letters at post-office; oath: Section 204, old Section 3988.

Letters carried in a foreign vessel to be deposited in a postoffice: Section 203; old Section 4016.

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