752
FEDERAL REPORTER,
vol. 40.
though at the expiration of that period there may have been a change of purpose. The demurrer, in my opinionl is not well taken, and is . therefore overruled.
UNl'TED STATES'll. DORSEY.
(District Oourt, S. D. Mississippi, M. D. November Term, 1889.) L POST-OFFIOE-ROBBERY FROM MAILS-DEOOY LETTERS.
end. S.
The use of test or decoy letters by inspectors of mails, for the purpose of ascertaining the deprepators upon the mails, is proper and justifiable, as a means to that
SAME.
The abstracting, from a letter in a registered mail package, of a silver certificate, b'y a railway postal clerk, after he has received it 88 such, and while in his posse&sIOn, to be conveyed by him as other registered mail, though placed there to give him opportunity to taka it. if haso chooses, is a violation of seotion5467. (SyUabus by the Oourt..)
Motion for a peremptory instruction to the jury to return a "erdict of not guilty. A. M. Lee, U. S. Atty. Calhoun & Green, for defendant. HILL, J. The question subtIliHed to the court for decision arose upon the defendant's motion to instrnct the jury to return a verdict of not guilty. The indictm·ent makes the following averment: "That the defendant, George P.Dqrsey, on the 15th day of. May, 1889, in this district, and within the jurisdiction of this court, the said George P. Dorsey being then and there employed in the postal service of the United States, in the capacity of a postal clerk, a certain registered package numbered 39, post-marked Shellmound, Miss., and directed to Messrs. Eyricb & 00., New York, aod purporting to be signed by Mary Winford, in which said letter was inclosed a certain United i:ltates silver certificate, of series 1880, lettered B,and numbered 7,537.482, and of the denomination of ten dollars, and which said package had not been delivered to the party to whom it was addressed, unlawflJlly and feloniously, he, the said Dorsey, the said cel'tilicate out of the said package and letter then and there did steal, contrary , to the form of the statute· in such caae made and provided, and against the peace and dignity of the United States."
To which indictment the defendant has pleaded not guilty. It is admitted by the district attorney, on the part of the United States, that the package, letter,and certificate were prepared by Pettigrew, then acting as'an inspector of the mails of the United States, and whose business was then to detect depredations on the mails of the United States, for thepl1r'pose of detecting these depredations on the railway route .between' Greenwood, in Leflore county, and Jackson, Miss., and not for the purpose of being conveyed by the mail to the persons addressed on
UNITED STATES ft. DORSEY.
'153
the back of the letter containing said silver certificate, but that it was intended to be placed in the hands of the postmaster at Greenwood, and by him delivered to the postal clerk at Greenwood, to give the postal clerk an opportunity to embezzle said package and letter, and to steal said silver certificate, after he should have received the same, and before the delivery thereof to the transfer postal agent at Jackson, Miss. The tlvidence of Pettigrew, the inspector, and the postmaster at Greenwood, is that the package known as a "registered" envelope, or package, containing the letter in which was, inclosed the certificate described in the :::Idictment, was delivered to the defendant, then acting as the postal clerk on the said route from Greenwood to Jackson, Mis.;;. The uncont,c1dicted testimony further is that the package described in the indictme!lt was delivered by the defendant to the transfer clerk at Jackson, and that it was afterwards delivered by him to said Pettigrew and to McDonald, another inspector in the mail service, engaged with said Pettigrew in the examination of mail depredations on said route. The testimony of said Pettigrew and McDonald is that they opened said package and letter, and found that the same had been opened, and the silver certificate inclosed therein had been abstracted, and taken out of the same. There has been much other testimony on both sides, but which need not be stated in the consideration of the question raised by this motion. The questions are: First, Was this package, letter, and certificate such mail matter as is embraced within the meaning of section 5467 of the Revised Statutes of the United States, under which the indictment is preaicated? Secondly. \Vas the same intended to be conveyed through the mails of the United States, and the embezzlement or stealing of which by an employe in the mail service, into whose possession the same might come, constitutes the offense under said statute? All the decisions that I have found on the question of the right and propriety of using test or decoy letters to detect depredations on the mails of the United States, or those of other governments, justify their use, and for the reason that there is no other department of government in which so many persons are so directly interested, but there is some difference of opinion in reference to wheth or not a package or letter, so used, and not r intended to be received by the party to whom the same is addressed, the embezzlement and stealing of which, with the inclosure. is intended by the statute to be embraced, is the subject of embezzlement and larceny, within the meaning of the statute. The decisions mainly relied upon on the part of the defendant to sl,lstain the motion are the recent decisions of Judge SPEER, of the southern district of Georgia, in the case of U. S. v. Denicke, 35 Fed. Rep. 407, and of Justice HARLAN, in the case of U. S. v. thew8, ld. 890, and the cases referred to in the opinions in these cases. The decision in the first-named case is in point; and, if it is the law. will sustain defendant's motion, and some of the expressions \lsedlly the learned jnstice in the last-named case, if applicable to the facts in that case, would give the position some support; but the only question in that case was, whether it was intended that the letter should be convAOF.no.18-48
El:Dll:RALREPOltTER, vol. 40. at all, but ,lleized before it ep.tered into the mail. ..'jlisHce;in the conclusion of the opinion, ·uses these words: , ,.'.:. . The
"¥y decision rests upon the ground that there was evidence tending to show.that the Weidner letter was not intended to be conveyed by mail, and that the district court erred in not leaving it tO,the juty to determine, under all the evidence, whether it was intended to be so conveyed. The question presented is, I ad tnit. a clos80ne; but my best judgment fa VOi"S this construe. tion of the statute, astheone,mostlikely to give effect to the will of congress;"
·· ... ;1.'·'
I,have a, ,high regard' for the legaLopinions of Justice HARLAN, and would hesitate long before disagreeing with 'him, in a calle where he was himself fully satisfied with his own conclusions, which I. infer he was not in .this particular case, though,. undel' the' fac#3 in that case, his judgment was. right; the' of the intention that the let. ter should go intot4e IDlli11, under the facts proven, should have been left to t4e jury. . I alSQ 'have a high regard for the legal opinion of Judge Sl'EER, but am'Qompelleq acttipon IllY own convictions in all .cases in which I a,mnot bo\ind.by the decision of higher tribunals; and, while tbere are decisions on l:iothsides, of thequestio,n, I am satisfied thatthe opinioo in1>Y CirQuit SON, both of whom ar(;l among our learned .and.able jurists, anp-ouncing the rule which itjs *dpiitted' .adverSe· to the motion in this case, is sustained bya weight of both authority and reason whichoU;t. ,prpduced in their motion, wllicll opinion wi.l1 .be found ill the case of U.S. Y.. 88.Fed. Rep. The eVIl Intq ie that in case oLa ltisto;'preven:fbreache!1 of trust by those intrusted with t4e mails of the United of the public service in Wllich, man in the United ,Stll;te3 has a direct · the statute istpat all mailable matter intrusted to' any of the, officers, or ,agents in the postals.ervwith.0ut, in ice, , transportation, be from the place where It IS delIvered to'tq:e officers, of the mfl,il service to the ,point of by the means; and auy, unauthorized In, 'with !luch alid its sl1fe anll &peedy ",is' a gross breach of trust; itd.o,ne by anyal' such em'ployes olllgents, . and to prevent which wa,& 'the, of congres('i jnthe enactment of , the statute. The evidence!!hows that this. packa,ge and contents were "duly placed in the poS'ses!liori'J(the postmaster Greenwood, and by him delivered to defen'daJ:lt, ltlil'thepostal clerk, to be by him carried in the mall, as other mail ma(ter"tP be deliverEJd ,to transfer agent in Jackson, as were other' of the sanle kind·. ,This is admitted by. the'defendant. 'And. We, was 8,0 carried ano. delivered; that is, the package conveyed i'nitwere ElO carried and deliv, and the J.nspeytors,until after the delivery to thetramiferagEllit at Jar;:kson: As towbat was ,dpne after this, is not : embraced in the., presEln,t"inquiry The, uncoptrov.erted faCts shown l.lY . the proof,ip iny establi!ll1 the thli..t th,e letter alld .cerHp-
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cateinclosed in the registered envelope were intended to be conveyed in the mail on that route, within the meaning of the statute, and that it "is no defense to the defendant that the purpose was to give him an opportunity to rifle its contents, if he saw proper to do so, though this was the only purpose of its being placed in his possession. This position, I am satisfied, is maintained by both authority and reason. The question, in nearly all the cases relied upon by defendant's counsel, was as to whether or not the letters or mail matters were intended to be placed in the mail for transportation, and therefore they do not apply to the facts in this case; and, so believing, I feel constrained to overrule the motion of defendant, to peremptorily instruct the jury to return in his favor a verdict of not guilty. I am gratified that this case is in the district court, and that a writ of error can be obtained from the circuit judge, to remove the case to the circuit court, where that court can correct any errors which I have made. I will endeavor to instruct the jury thl{t any errors I may commit will appear in Buch way as to enable theclTcuit court to understand and correct them, as I would very much regretthlit the defendant· should sufl'erf()rany error of mine; that is, if a verdict shouldbo returned the defendant; but, if in his favor, my error in this ruling, as to him, will be harmless.
UNITED STATES '17. SMITH.
(C-trtmu Court, E. D. Virginia. Decembm: 28. 1889.) 1. IQ'oRlUnoN-INlI'.urous OPPENSIlIl. .
Any offense involving imprisonment In a general or penitentiary fa infamous, and cannot be prosecuted by info1"mation, under the first clause of the :fifth amendment Const. U. S.,which declares that "no person shall be beld loa lionswer f01" a capital or' otherwise infamous crime, unless on a presentment or lIidictment ofa grand jury. "
,I. BUE-RIGlIT'1'O FILE INFORMA.TION. , The light to file an Infol"lDation Is not a pre1"ogatlve of the prosecutor's ofll.ce. The district attorney must first have leave of court; and the court may require him, before gt'aJ:Jtingleave, to bring the accused before the court to "show cause, if cause there be, againllt the filing of the information.
On Motion for Leave to File Information for Violation of Rev. St. U. S. § 5 5 0 6 . ' ' , T.,R. Borland" U. S. DM. Atty., and L. O. Bri8Ww, Asst. U. S. Dist. Atty. . O. Jr.,Meredith, James LyO'l'l8" and Meade Haskins, for defendant. HUGHE8,:J.The information which the United States attorney moves fOl leave to :file informs the court and charges ·that the accused did, at ,ilie 'e1e<)tionhe1d for a represel1tative in congress in Richmond on the 6th