6. Violation of the Postoffice Laws.

[See XII, supra.]

SUMMARY- Advising and procuring under the act of 1825, § 2437.- Opening a letter, § 2438.Embezzlement; may be proceeded against by information, § 2439; as to ownership of valuable thing contained in letter, SS 2440, 2441, 2442; by clerk; may be charged in language of statute, § 2441; averment as to place to which letter was sent, § 2442; indictment held good, § 2443; description of bank-note contained in letter, §§ 2414, 2445; description of letter secreted, § 2445; whether letter was to be conveyed by post, § 2446; suficient to allege taking unlawful, § 2447.- Non-mailable matter, § 2448; alleging deposit of book; variance, § 2449; averment that act was committed knowingly, sufficient, § 2450; object of use of obscene words, not material, § 2451.

2437. Section 24 of the act of 1825, "to reduce into one the several acts establishing and regulating the postoffice department," declares "that every person who . . . shall procure and advise, or assist in the doing or perpetration of any of the acts or crimes by this act forbidden, shall be subject to the same penalties and punishments as the persons are subject to who actually do or perpetrate any of the said acts or crimes." It is held that an indictment under this act for procuring and advising, etc., must allege the offense charged to the chief actor to have been committed. United States v. Mills, § 2452-53.

§ 2438. An indictment for opening a letter charged, in the language of the act making it an offense, that at a time and place mentioned the defendant "did then and there open a certain letter directed to one C., which letter had been in a postoffice of the United States at H. in said district, and did so open the said letter before it had been delivered to the said C., to whom it was directed, and did so open the said letter with a design to obstruct the correspondence, and to pry into the business or secrets of another, namely, of the said C., said letter not containing any article of value." Held, that it was not necessary to allege that the defendant unlawfully opened the letter, as the indictment set up facts which, if true, showed the opening to have been unlawful; that it was not necessary to aver that the letter was sealed, because the opening of an unsealed letter with the intent charged would constitute the offense; that it was not necessary to allege that the letter was at the time in the lawful custody of any postal official, for under the act all that is necessary is that the letter shall have been in the lawful custody of some postal official and be opened before delivery to the person addressed; that the indictment would be good though the letter was written by the defendant himself; and that it was not necessary to allege that C. was a real and not a fictitious person, for the ailegation implies it, as none but a real person could have business or secrets. United States v. Pond, §§ 2454-59.

§ 2439. The offense of embezzling a letter in postal custody; defined and punished by section 5467 of the Revised Statutes, not being treason, and not being declared by act of congress to be a felony, and being a misdemeanor which does not fall within the designation of crimen falsi, is not within the fifth amendment requiring a presentment or indictment by a grand jury. It may therefore be proceeded against by information. United States v. Baugh, S$ 2460-63. See § 2498.

§ 2440. Where the indictment under section 5467 of the Revised Statutes is intended to charge only the embezzlement of the letter in the custody of the postoffice, and alleges the stealing or taking of its contents only by way of description (the section requiring that the letter embezzled should have contained some one of the valuable things named in the section, and that this valuable thing should have been taken from the letter), it need not charge the ownership of the valuable thing taken in some other person than the accused. Ibid.

§ 2441. The offense of embezzlement by a clerk in the postoffice of a letter containing bankbills may be charged substantially in the words of the statute. It is not necessary in such case that the property in the bank-bill should be laid in some one other than the defendant; nor that the letter came into his possession by virtue of his employment; nor is it necessary to state the places between which the letter was to be carried. United States v. Laws, $ 2464-67.

§ 2442. Under the act of July 1, 1864, punishing the embezzlement of any letter containing money intended to be conveyed by post, and declaring that "the fact that any such letter . . . . shall have been deposited in any post office. or in charge of any post

master, assistant postmaster, clerk, carrier, agent or messenger, employed in the postoffice establishment of the United States, shall be taken and held as evidence that the same was intended to be conveyed by post within the meaning of this statute," it is not necessary to aver that the letter was intended to be conveyed to any particular place. It is not necessary that the indictment, under this act, should aver the ownership of the money in the letter as

being in some other person than the accused. The gist of the offense is the taking and destroy ing the letter, not the converting of the money. United States v. Okie, §§ 2468-69.

§ 2443. An indictment charging that the defendant, “a person employed in one of the departments of the postoffice establishment of the United States, a certain letter which came to the possession of him, the said," etc., "and which was intended to be conveyed by post, and containing a bank-note of great value, viz., of the value of $50, did then and there, with force and arms, feloniously embezzle," etc., is sufficient. United States v. Patterson, S$ 2470-73.

§ 2444. An indictment of a postoffice employee for the embezzlement of a letter containing a bank-note need not describe the note as in a case of larceny. Ibid.

§ 2445. An indictment of a postmaster under the twenty-first section of the act of March 3, 1825, punishing "any person employed in any of the departments of the postoffice establishment" who "shall secrete, embezzle or destroy any letter, packet, bag or mail of letters with which he shall be intrusted, or which shall have come into his possession, and are intended to be conveyed by post, containing any bank-note," etc., need not describe particularly the letter charged to have been secreted, etc. Nor is it necessary to describe particularly the bank-notes. United States v. Lancaster, §§ 2474-79.

§ 2446. It is not necessary that the letter should have come into his possession to be conveyed by post. Ibid.

$2147. A charge that the taking was unlawful is sufficient, and the taking need not be alleged to have been felonious. Ibid.

§ 2448. Where, by an indictment found under the act of July 12, 1876, for depositing matter in the mail declared by the act to be non-mailable, the defendant has information given to him as to the offense charged, by the date of the mailing, by the title of the book, and by the address on the wrapper; and the indictment states the reason for not setting forth the book to be that it is too obscene and indecent to be set forth; and a copy of the book with a designation of the obscene passages relied on could have been obtained before the trial, by asking for a bill of particulars, the defendant is not deprived of the right "to be informed of the nature and cause of the accusation," and the indictment is sufficient. United States v. Bennett, SS 2480-89. See § 2495.

§ 2449. There is no variance between an averment, in an indictment for mailing nonmailable matter, alleging the deposit of a "book," and proof of the deposit of twenty-four pages of printed matter secured together, and having a cover of four pages, and having a title page on which the title is printed identically the same as on page one of the cover, the defendant's counsel in examining the witnesses having themselves called the publication a "book." Ibid.

§ 2450. An indictment, under the act of July 12, 1876, for depositing non-mailable matter in the mails, is sufficient if it alleges that the defendant knowingly deposited the alleged book. It need not aver that he knew it to be non-mailable matter under the statute. Ibid. $2451. Upon the trial of an indictment for depositing obscene and indecent matter in the mails, contrary to the act of July 12, 1876, the object of the use of the obscene words is not a subject for consideration. Ibid.

[NOTES.-See §§ 2490-2506.]

UNITED STATES v. MILLS.

(7 Peters, 138-143. 1833.)

Opinion by MR. JUSTICE THOMPSON.

STATEMENT OF FACTS.- The defendant was indicted in the circuit court of the United States for the district of North Carolina, under the twenty-fourth section of the act of 1825, entitled "An act to reduce into one the several acts establishing and regulating the post office department" (7 Laws U. S., 377), which declares "that every person who, from and after the passing of this act, shall procure and advise, or assist in the doing or perpetration of any of the acts or crimes by this act forbidden, shall be subject to the same penalties and punishments as the persons are subject to who shall actually do or perpetrate any of the said acts or crimes according to the provisions of this act." Upon the trial the defendant was convicted of the offense charged in the indictment, and a motion was made in arrest of judgment, upon which motion the judges

were opposed in opinion, and the case comes here upon the following certifi

cate:

The defendant was indicted upon the twenty-fourth section of the act of congress, approved the 3d of March, 1825, entitled "An act to reduce into one the several acts establishing and regulating the postoffice department," for advising, procuring and assisting one Joseph I. Straughan, mail carrier, to rob the mail, and being found guilty submitted a motion in arrest of judgment; one reason in support of which motion was that the indictment did not sufficiently show any offense against the said act because the same did not directly charge. or otherwise aver that the said Joseph I. Straughan did actually rob the mail, and upon argument the judges were opposed in opinion upon this question, to wit, whether an indictment grounded upon the said statute for advising, etc., a mail carrier to rob the mail, ought to set forth or aver that the said carrier did in fact commit the offense of robbing the mail, and therefore the judges directed the same to be certified to the supreme court.

§ 2452. An indictment charging the accused with advising another to rob the mail must allege that the mail was actually robbed.

The offense charged in this indictment is a misdemeanor where all are principals, and the doctrine applicable to principal and accessory in cases of felony does not apply. The offense, however, charged against the defendant is secondary in its character, and there can be no doubt that it must sufficiently appear upon the indictment that the offense alleged against the chief actor had in fact been committed.

The first count in the indictment alleges that the defendant did, at the time and place therein mentioned, procure, advise and assist Joseph I. Straughan to secrete, embezzle and destroy a letter with which he, the said Joseph I. Straughan, was intrusted, and which had come to his possession and was intended to be conveyed by post, etc., containing bank-notes, etc. He, the said Joseph I. Straughan, being at the time of such procuring, advising and assisting a person employed in one of the post office establishments, to wit, a carrier of the mail, etc., contrary to the form of the act of congress in such case made and provided. The second count in the indictment sets out the particular letter secreted, embezzled and destroyed, containing bank-notes amounting to $60. The offense here set out against Straughan, the mail carrier, is substantially in the words of the statute, second section. If any person employed in any of the departments of the postoffice establishment shall secrete, embezzle or destroy any letter, packet, bag or mail of letters with which he shall be intrusted, or which shall have come to his possession and is intended to be conveyed by post, containing any bank-note, etc., such person shall, on conviction, be imprisoned, etc.

2453. Rule as to certainty in indictments for misdemeanors.

The general rule is that, in indictments for misdemeanors created by statute, it is sufficient to charge the offense in the words of the statute. There is not that technical nicety required as to form which seems to have been adopted and sanctioned by long practice in cases of felony, and with respect to some crimes where particular words must be used, and no other words, however synonymous they may seem, can be substituted. But in all cases the offense must be set forth with clearness and all necessary certainty to apprise the accused of the crime with which he stands charged. And we think the present indictment contains such certainty, and sufficiently alleges that the offense had, in point of fact, been committed by Straughan. It charges the defendant not.

only with advising, but procuring and assisting Straughan to secrete and embezzle, etc. This necessarily implies that the act was done, and is such an averment or allegation as made it necessary on the part of the prosecution to prove that the act had been done.

The particular question put in the certificate of division is, whether an indictment, grounded upon the said statute for advising, etc., a mail carrier to rob the mail, ought to set forth or aver that the said carrier did in fact commit the offense of robbing the mail. The answer to this as an abstract proposition must be in the affirmative. But if the question intended to be put is whether there must be a distinct, substantive and independent averment of that fact, we should say it is not necessary, and that the indictment in this case sufficiently sets out that the offense had been committed by Straughan, the mail carrier, and that no defect appears in the indictment for which the judgment ought to be arrested. A certificate to this effect must accordingly be sent to the circuit court.

त

UNITED STATES v. POND.

(Circuit Court for Massachusetts: 2 Curtis, 265-270. 1855.)

STATEMENT OF FACTS.-Indictment under the twenty-second section of the act of March 3, 1825. The averments were as follows: "That on, etc., one Abel Pond, at, etc., did then and there open a certain letter directed to one 'Ebenezer H. Currier, Esq.,' which letter had been in a postoffice of the said United States, namely, etc., and did so open the said letter before it had been delivered to the said Currier, to whom it was directed, and did so open the said letter with a design to obstruct the correspondence, and to pry into the business or secrets of another, namely, of the said Ebenezer II. Currier, said letter not containing any article of value."

There was a motion to quash the indictment, on the ground that there was no addition of mystery, degree or occupation, and on other grounds stated in the opinion.

§ 2454. A defect pleadable in abatement, and cured by pleading over, is no ground for quashing an indictment.

Opinion by CURTIS, J.

2

Without expressing any opinion respecting the necessity of an addition of the mystery or degree of the defendant, in an indictment, I think the first cause assigned insufficient to support the motion. The want of an addition, or a wrong addition, when required, is ground for a plea in abatement only. Hawk., c. 23, § 125; 2 Inst., 670; Rex v. Warren, 1 Sid., 247; Rex v. Checkets, 6 Maule & S., 91. A motion by a defendant to quash an indictment must be founded on defects which would make a judgment against him, on that indictment, erroneous. Bac. Ab., Indictment, K; 2 Hawk., c. 25, § 146; Com. Dig., Indictment, H. And there are many cases where the court, in the exercise of its discretion, refuses to quash an indictment even for defects which would cause an arrest of judgment. Bac. Ab., Indictment, K. In Rex v. Wheatley, 1 Wm. Bl., 275, Lord Mansfield said, "If any distinction is made between quashing and arrest of judgment, that of quashing is the strongest way; because the indictment must be very grossly bad to have the court quash it at once.". A defect only pleadable in abatement, and which is cured by pleading over, is not ground for quashing an indictment.

82455. Rules of pleading in charging statutory offenses.

The cause secondly assigned, if found correct, would be sufficient. In examining it, it must be remembered that this is an indictment for a misdemeanor created by statute; and that, in general, it is sufficient to describe such an offense in the words of the statute. United States v. Mills, 7 Pet., 138 (§ 2452-53, supra). This indictment follows the words of the statute. It is sufficient, therefore, unless the words of the statute embrace cases which it was not the intention of the legislature to include within the law. If they do, the indictment should show this is not one of the cases thus excluded. In the case of The Mary Ann, 8 Wheat., 389, speaking of an information, Mr. Chief Justice Marshall said, "If the words which describe the subject of the law are general, embracing a whole class of individuals, but must necessarily be so construed as to embrace only a subdivision of that class, we think the charge in the libel ought to conform to the true sense and meaning of those words as used by the legislature;" and this is only another mode of expressing the same rule which I have stated above.

§ 2456. An indictment for opening a letter need contain no allegation that the letter was sealed; or that the opening thereof was unlawful; or that it was in the custody of a postmaster, if it had been in the postoffice.

To apply these rules to this case, the first objection is that the indictment does not allege that the defendant unlawfully opened the letter in question. But, following the words of the act, it does allege such facts as, if true, amount to an unlawful opening; for it avers the letter was opened before it reached the person to whom it was addressed, with intent to obstruct the correspondence and pry into the business or secrets of another. This intent renders the opening of such a letter unlawful, and it would add nothing material to call it so. The court takes notice of its illegality. The next objection is the want of an allegation that the letter was sealed. I am of opinion that opening such a letter, though unsealed, with the intent charged, is an offense against this act, and therefore it was not necessary to allege it to have been sealed.

It is further objected that it is not alleged that at the time of the opening, the letter was in the custody of any postmaster, letter carrier, or other person having lawful charge of the letter. The words of the act do not require that the letter, when opened, should be in the lawful custody of any one; but only that it had been in the postoffice, or in the custody of a mail carrier, and was opened before delivery to the person to whom directed. And I do not perceive sufficient reason why the language should not be literally construed. If a letter should be obtained by fraud or theft, from a postoffice by one person, and opened by a second, with design to pry into the business or secrets of another, or obstruct his correspondence, I think it would be an offense within this act. And so in any other case which has occurred to me, of a lawful or unlawful custody at the time of the opening, with such intent.

§ 2457. — excluding the idea the defendant wrote the letter.

But it is said the indictment does not exclude the idea that the letter was written by the defendant, and belonged to him at the time it was opened. I think it does; for the intent charged in the indictment could hardly exist, if the defendant wrote the letter. Such a case, of a person opening a letter which he had himself written, with intent to obstruct the correspondence, or pry into the business or secrets of another, cannot reasonably be supposed possible. But if it were possible, I do not know on what ground I could say it is not within. this act. True, the mere opening of a letter by him who wrote it, and put it