as confidential. But as to the wisdom of applying this rule in the present instance, the Secretary of the Treasury and the comptroller can best advise you. Respectfully, THE PRESIDENT. GEORGE W. WICKERSHAM. COURT-MARTIAL-EMBEZZLEMENT-ASSISTANT PAYMASTER IN THE NAVY. The willful use of Government funds by a pay officer of the Navy for the purpose of cashing a certificate of deposit as an accommodation to a personal friend, constitutes embezzlement under the provisions of sections 87 and 89 of the Criminal Code. The overpayment by a pay officer of the Navy to himself from public funds, where the officer is guilty of such negligence or indifference as to indicate a willful disregard of the duties imposed upon him by law with respect to the safe-keeping of the moneys in his charge, is in violation of sections 87 and 89 of the Criminal Code. The willful withdrawing of public funds by a pay officer of the Navy for his personal use while absent from his station of duty, even though there be no intention on his part to defraud the United States and the funds withdrawn are subsequently replaced, is a violation of the provisions of sections 87 and 89 of the Criminal Code. View expressed that charge of embezzlement should be formulated under paragraph 9, article 14 of the Articles for the government of the Navy, but as a matter of precaution advised that such charge be formulated under both said paragraph and article 22, or "catch, all" clause of said articles. DEPARTMENT OF JUSTICE, SIR: I have the honor to reply to your letter of September 3, in which you request an opinion upon certain questions arising in connection with the general courtmartial proceedings against Asst. Paymaster Russell V. de W. Bleecker, of the Navy, charged with violating article 14 of the Articles for the government of the Navy, set forth under section 1624 of the Revised Statutes of the United States. The questions are thus stated: "1. Does the willful use of Government funds by a pay officer of the Navy for the purpose of cashing a certificate of deposit as an accommodation to a personal friend constitute embezzlement under the circumstances of this case as set forth in specification 1 of the third charge preferred against Asst. Paymaster Bleecker? "2. Does an overpayment made to himself from public funds by a pay officer in the Navy constitute embezzlement where it appears that there may have been no criminal intent involved, but the pay officer was at least guilty of negligence or indifference as to the status of his account? "3. Is a pay officer of the Navy guilty of embezzlement in willfully withdrawing public funds for his personal use while absent from his station and duty, and marking the check so drawn as exchanged for cash, where the evidence does not establish that he had any intention of defrauding the United States, and upon his return to duty five days later he replaced the amount so withdrawn?" Specification 1 of the third charge, referred to in the first question, reads: "In that Russell V. de W. Bleecker, an assistant paymaster in the United States Navy, attached to and serving at the United States naval station, Key West, Florida, having received into his possession and under his control, in the execution and under color of his office as aforesaid,. money of the United States, furnished and intended for the naval service thereof, for the disbursement of which according to law he, the said Bleecker, was responsible, did, on or about the thirteenth day of April, nineteen hundred and twelve, at St. Petersburg, Florida, embezzle and convert to his own use public funds entrusted to his care to the value and amount of one thousand dollars, in that the said Bleecker did, on the said date, at the said place, draw checks numbered five hundred eighty-six thousand six hundred and ninety and five hundred eighty-six thousand six hundred and ninety-one, each to the value of five hundred dollars, to his own order on the Assistant Treasurer of the United States at New York, New York, and each by him, the said Bleecker, marked 'exchange for cash,' and did exchange the said checks for a certain pri vate certificate of deposit for one thousand dollars on a bank in Jonesboro, Arkansas, drawn in favor of one Ella Galvin." The fourteenth Article for the government of the Navy (R. S. 1624), under which the third charge was laid, provides: "Fine and imprisonment, or such other punishment as a court-martial may adjudge, shall be inflicted upon any person in the naval service of the United States— "Who steals, embezzles, knowingly and wilfully misappropriates, applies to his own use or benefit, or wrongfully and knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money or other property of the United States, furnished or intended for the military or naval service thereof; * * * "9 In connection with the questions presented, you refer to sections 87 and 89 of the Criminal Code, and say that, in the opinion of your Department, the evidence against Asst. Paymaster Bleecker in the court-martial proceedings shows a violation of both those sections. The sections referred to are as follows: "Sec. 87. Whoever, being a disbursing officer of the United States, or a person acting as such, shall in any manner convert to his own use, or loan with or without interest, or deposit in any place or in any manner, except as authorized by law, any public money intrusted to him; or shall, for any purpose not prescribed by law, withdraw from the Treasurer or any assistant treasurer, or any authorized depositary, or transfer, or apply, any portion of the public money intrusted to him, shall be deemed guilty of an embezzlement of the money so converted, loaned, deposited, withdrawn, transferred, or applied, and shall be fined not more than the amount embezzled, or imprisoned not more than ten years, or both. "Sec. 89. Every officer or other person charged by any act of Congress with the safe-keeping of the public moneys, who shall loan, use, or convert to his own use, or shall deposit in any bank or exchange for other funds, except as specially allowed by law, any portion of the public moneys intrusted to him for safe-keeping, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged, and shall be fined in a sum equal to the amount of money so embezzled and imprisoned not more than ten years." In my opinion, upon the facts stated in connection with your several questions, a paymaster officer of the Navy would be guilty of violating either one or both of the above sections, since neither of them require an intent to defraud the Government, but only an intent to do the thing prohibited. It appears to be the settled construction of the War Department that in order to constitute embezzlement under section 5488 of the Revised Statutes, now section 87 of the Criminal Code, an intent to defraud is unnecessary. Thus in Howland's Digest of Opinions of the Judge Advocates General of the Army, pages 145-146, referring to charges laid under the sixty second article of war for the violation of the act of June 14, 1866, afterwards section 5488 of the Revised Statutes, it is said "that to constitute such embezzlement it is not necessary that there should have been a personal conversion of the funds or an intent to defraud. The object of the law is to provide a safeguard against the misuse and diverting from their appointed purpose of public moneys, and the intent of the offender, whether fraudulent or not, enters in no respect into the statutory crime. If the withdrawal or application of the funds is simply one not prescribed or authorized by law, the offense is complete. R. 25, 588, May, 1868: 27, 116, July, 1868; 33, 494, Nov., 1872; 38, 96, May, 1876. An absence, however, of criminal motive in the illegal act may be shown in mitigation of sentence in a military case. R. 33, 494, supra. So held that it constituted no defense to a charge of an embezzlement of this class (though it might be shown in mitigation of punishment) that the officer had restored to the public depository the funds illegally withdrawn by him before a formal demand was made for the same. R. 25, 588, supra." In a note to the above the following is quoted from an opinion of Judge Advocate Gen. Holt in support of the statements made in the text: 66 * The statute of 1866, in view of which it was preferred, is the expression of extreme vigilance in regard to the proper use and disposition of the public moneys, found by the experience of the Government to have become imperatively necessary to be observed. It provides an additional safeguard of the Public Treasury by enacting that any disbursing officer who shall withdraw, transfer, or apply any of the public funds intrusted to him for any purpose not authorized by law shall be deemed guilty of a felonious embezzlement and be punished accordingly. The intent of the officer, whether innocent or fraudulent, enters in no manner into the statutory offense. If his act of withdrawal, application, etc., of the funds is simply one not authorized by existing law, he is guilty of the crime here defined by Congress. His intent, if innocent, may perhaps be considered in mitigation of punishment, but can not be relied upon as a legal bar against conviction. The offense created by this act belongs to the class known as mala prohibita, but it is upon the repression of this class of offenses that the safety of the Public Treasury largely depends." All that appears to be required to constitute a violation of a statute of this kind is that the defendant should have intended to do the prohibited act. (Armour Packing Co. v. United States, 209 U. S. 56, 85-86; Dimmick v. United States, 121 Fed. 638, 643.) Referring to your first question, it appears therefrom in connection with the facts stated in specification 1 of the first charge that Bleecker willfully withdrew, from the Assistant Treasurer of the United States at New York, Government funds for the purpose of cashing a certificate of deposit as an accommodation to a personal friend, this being for a purpose not prescribed by law, and therefore covered by the second clause of section 87 of the code. Such transaction also appears to be in violation of the provision of section 89 against the "exchange for other funds, except as |