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specially allowed by law," of a portion of the public moneys intrusted to such an officer for safe-keeping.
Your second question
“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” appears to be answered by what was said in my opinion of May 9, 1910, in the case of Asst. Paymaster Haughey (28 Op. 286), assuming that the negligence or indifference attributed to the officer was such 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. This would appear to be in violation of the provisions of sections 87 and 89 with respect to public officers converting public moneys to their own use except as authorized by law.
The action of a pay officer of the Navy in willfully drawing public funds for his personal use while absent from his station and duty, as stated in your third question, also clearly amounts to a violation of the provisions of sections 87 and 89 against converting public funds to his own use except as authorized by law, although there be no intention on his part to defraud the United States, and the funds withdrawn are subsequently replaced.
It is suggested that the word “ embezzles," as used in paragraph 9, article 14, of the Articles for the government of the Navy, does not refer to embezzlement as defined in the Criminal Code, but to that offense as it is generally understood—that is, a conversion of funds with an intent to defraud the true owner out of the use thereof—and hence that the charge of embezzling money in violation of sections 87 and 89 of the Criminal Code should be formulated under article 22 or “ catch-all ” clause of the Articles for the government of the Navy and not under Paragraph 9, article 14. This distinction was not suggested in the Haughey matter, and hence it was not there given any special consideration.
It is true that a willful or fraudulent intent is required as an element of many of the offenses specified in the several paragraphs of article 14, yet if embezzlement as defined in the Revised Statutes, and now by the Criminal Code of the United States, is not the offense referred to in paragraph 9, article 14, what is the precise nature of the offense there mentioned? Where a common-law offense is named in an act of Congress without defining it, undoubtedly the courts will construe the statute as applying to the offense as defined at common law; but embezzlement is not a common-law offense. In 15 Cyc. 489, 490, it is said“ the offense (of embezzlement) is of purely statutory origin, and, accordingly, the particular statutes of the various jurisdictions must be looked to in order to determine the constituent elements of the offense therein."
No resort can be had to the definitions of embezzlement given in the laws of the several States, as there is no uniformity in the State statutes upon the subject. In many States a fraudulent intent is an essential ingredient of the crime, while in others it is not. State v. Hopkins, 56 Vt., 250; United States v. Adams, 2 Dak., 305; State v. Stimson, 24 N. J. L., 478; Minnesota v. Czizek, 38 Minn., 192.
Again, if the statutory embezzlement is not referred to in paragraph 9, article 14, then a naval officer who converts funds intended for the naval service may be guilty of two kinds of embezzlement, one of which is defined in the Criminal Code, and for which he may be punished in the proper civil court, or by a court-martial under article 22 of the Articles for the government of the Navy, and the other of which has no certain definition and for which he may be punished by court-martial under paragraph 1, article 14, of said Articles. I can see no reason why such a distinction should be drawn between a naval or an Army officer and any other official of the Government charged with the safe-keeping of funds, nor why the offense of embezzlement when committed by a Government official should not be the same, regardless of the line of service in which he is employed.
There is another reason why a charge for embezzlement formulated under article 22 would be of doubtful validity. The language of that article is:
“All offenses committed by persons belonging to the Navy which are not specified in the foregoing articles shall be punished as a court-martial may direct.”
Paragraph 9 of article 14 expressly specifies as an offense for which the offender may be punished by fine and imprisonment, or such other punishment as a court-martial may adjudge, the embezzling by any person in the naval service of money furnished or intended for the military or naval service. Bleecker was in the naval service and is charged with embezzling money appropriated for the naval service, and it could with much reason be urged that his offense is excluded by express language from article 22.
However, I know of no rule of practice which prohibits the formulation of the same charge under more than one article, and as a matter of precaution it might be advisable to formulate the charges against Bleecker under both paragraph 9, article 14, and article 22. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY.
EXPORTATION OF AIR RIFLES AND PAPER CAPS FOR TOY
CAP PISTOLS TO MEXICO.
Paper caps for toy cap pistols could hardly be considered within
the prohibition of the President's proclamation of March 14, 1912, issued pursuant to the joint resolution of the same date, forbidding the exportation of arms and munitions of war to Mexico, whereas air rifles might well be regarded within the prohibition. The question, however, is one of fact, dependent upon the character of the articles sought to be imported.
DEPARTMENT OF JUSTICE,
November 18, 1912. SIR: I have your favor of the 16th instant, in which, referring to my previous letter of June 5, 1912, in which I advised you that toy pistols were not within the mean
ing of “ arms or munitions of war as used in the President's proclamation of March 14, 1912, you now advise me that your department has been requested to secure authorization for the exportation to Mexico of a number of air rifles and a case of paper caps for toy cap pistols; and you ask whether, in my opinion, these articles are included within the meaning of the term “ arms or munitions of war” as used in the President's proclamation above mentioned.
In my opinion to the President dated March 25, 1912 (29 Op. 375), I suggested the following as embracing all that is within the practical purpose which the joint resolution and the proclamation were intended to accomplish, namely:
“ Articles primarily and ordinarily used for military purposes in time of war, such as weapons of every species used for the destruction of life, and projectiles, cartridges, ammunition of all sorts, and other supplies used or useful in connection therewith, including parts used for the repair or manufacture of such arms, and raw material employed in the manufacture of such ammunition; also dynamite, nitroglycerin, or other explosive substances; also gun mountings, limber boxes, limbers, military wagons; field forges and their component parts, comprising equipment of a distinctively military character; articles of camp equipment and their distinctive component parts; and implements manufactured exclusively for the manufacture of implements of war, or for the manufacture or repair of arms or war material.”
In my further opinion to the President dated April 20, 1912 (29 Op. 394), I expressed the opinion that saddles, bridles, canteens, and carbine scabbards, which were used in promoting the disturbances in Mexico, fell within the purpose of the joint resolution, which was to probihit the exportation of such arms or munitions of war as are used in promoting conditions of domestic violence.”
In an opinion rendered to you on May 20, 1912 (29 Op. 414), the view was expressed that gun grease prepared expressly for use in connection with guns of some sort fell
within the definition of “supplies used or useful in connection with weapons of some species used for the destruction of life" and therefore within the prohibition of the joint resolution and proclamation.
Applying these principles to the present inquiry, it would seem that paper caps for toy cap pistols could hardly be regarded as weapons of any species used for the destruction of life, whereas air rifles might well be employed for that purpose. The question is one of fact, dependent upon the actual character of the articles sought to be exported, and it is believed that the definition and rulings above referred to will afford a sufficient guide in determining the application of the resolution and the President's proclamation to the case presented. Very respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF STATE.
FOREIGN TUGBOAT TOWING LOGS INTO DIFFERENT PORTS
OF THE UNITED STATES.
A foreign tugboat clearing from Vancouver, British Columbia, with
logs in tow, some of which are destined to Anacortes, Wash., and the remainder to Bellingham, Wash., may lawfully be permitted, after arrival at Anacortes and delivery there of the logs consigned to that port, to proceed to Bellingham with the remaining logs in tow for delivery there.
DEPARTMENT OF JUSTICE,
November 20, 1912. SIR: I have the honor to acknowledge your letter of the 25th ultimo requesting my opinion on the question, “whether, in view of the provisions of section 4371, Revised Statutes, section 7 of the act of June 19, 1886, and section 4347, Revised Statutes, as amended February 15, 1893, and February 17, 1898, a foreign tugboat clearing from Vancouver, British Columbia, with 30 sections of logs in tow, 15 of which are destined to Anacortes, Wash., and 15 of which to Bellingham, Wash., may lawfully be permitted, after arrival at Anacortes and delivery there of