his practice to store the original packages in a room in the rear of hiz shop, and from time to time, as his business required, to cut plugs from the packages and expose them for sale in a show-case in his front shop, the package itself remaining in the back room. At or about the time charged in the indictment he sold one of the plugs from his show-case to one Walsh.

It is clear that these facts bring the defendant within the excepting clause of section 3363, unless, as the government contends, a sale at retail must be made directly and literally from the package, and a sale of a part after it has been separated from the whole is unlawful. That this is not the meaning of the clause is plain. Its evident purpose is to permit the retail dealer, whose business is to make single sales in quantities less than the whole package, to break the package and sell to his customers in the lesser quantity. The statute prescribes no time when the separation of the lesser from the larger quantity shall be made. It does not declare that the separation shall take place only at the instant of time when the separated piece is sold. All it says is that it shall be from the package, the evident inference being that it may be taken from the package for sale at retail before the sale. How long before, it does not attempt to prescribe. The court can not supply what the statute omits to provide, and by sheer force of construction add an element which is wanting.

A statute so highly penal as this should be construed with at least reasonable strictness, and ought not to be extended by implication so as to include acts not plainly within its terms. The interpretation insisted upon by the government is a forced one, and is not warranted either by the letter or spirit of the enactment. A retail dealer who, in the course of his business, sells at retail tobacco taken by him from a wooden package duly put up and stamped, whether taken at or before the sale, does not violate this section,

Verdict set aside and a new trial granted.

of any post-office, any letter or packet therefrom, or from any postoffice, whether with or without the consent of the person having custody thereof, and shall open, embezzle or destroy any such mail, letter or packet, the same containing any article of value, etc., shall, on conviction thereof, be imprisoned not less than two nor exceeding ten years." And it is insisted that a conviction should be had, also, under the twenty-first section, for the detention of letters, on the first count in the indictment.

The twenty-first section provides that, "if any person employed in any of the departments of the post-office establishment shall unlawfully detain or open any letter, packet or mail of letters with which he shall be intrusted, or which shall have come into his possession, and which are intended to be conveyed by post," he shall, on conviction thereof, be punished, etc. The evidence does not show that the defendant detained any letters which came into his possession, "and which were intended to be forwarded by mail;" and it is the detention of such letters that is punishable under this clause of the statute. It applies to letters in transitu, and which have not reached their place of destination; letters deposited in a post-office to be forwarded, or handed to a mail carrier on his route, between post-offices, come within the provision if fraudulently detained.

As there is no evidence against the defendant, showing the detention of such letters, he can not be convicted on the first count in the indictment. More difficulty arises in giving a construction to the twentysecond section as applying to the facts proved. The language of the act is, if any person shall steal, or take from any mail or post-office, a letter, etc., shall be punished, etc. Now, to give a literal construction to this language, the taking from the mail, or a post-office, a letter, is punishable the same as for stealing it. This could not have been the intention of the Legislature. A mere taking, may be an innocent act, as if done through mistake, or without any criminal intent; and we find in the latter part of the same section, that, if any person shall take any letter or packet not containing any article of value, out of a postoffice, a very different punishment is inflicted. It could not have been the intention of the Legislature to provide different penalties for the same act; and, consequently, the taking in the part of the section first cited, must either be limited to letters containing some article of value or to a felonious taking.

The taking of a letter which contains an article of value is limited in this section to a taking with or without the consent of the person having the custody thereof, and where such letter is embezzled or destroyed. This provision does not embrace the class of offenses provided for in the previous part of the section, which is stealing or taking.

he would relieve him from any further care of the office, and would take the papers, etc. Certain letters directed to the postmaster, received in his absence, and others received by the last mail, and the dead letters' were handed to him; but the defendant refused to deliver the other letters, or pay over the money he had received for postage, and, seizing a gun, threatened to shoot the post-master if he did not leave the house. The postmaster retired, and left the letters he had received with his former assistant, with instructions to act as his assistant. He did so and handed out the letters in his possession as they were called for. The postmaster boarded at the house, with the assistant, at which the office was kept.

In the course of two or three days after this, the defendant made oath before a justice of the peace that certain property had been stolen or fraudulently taken from him, specifying certain letters, etc., which were legally in his possession; on which a search warrant was issued; and the letters in the possession of the regular assistant taken from him, and he was arrested and taken before a justice of the peace. On examination the assistant was released, but the letters were delivered over by the justice to the defendant, who continued for some days to open the mail and hand out letters, claiming a right so to act by virtue of his appointment, The postmaster then applied to the authority of the United States, instituted a prosecution against the defendant, and, through the instrumentality of the marshal, obtained possession of the post-office, letters and papers.

The defendant offered evidence to prove that the postmaster had agreed to resign the office in his favor; that he had sold him the case in which the letters were deposited; that he had removed from Shiawassee, and consequently had, under the law and instructions of the department, vacated the office. And in support of this last position the post-office act was read, which provides that no person shall hold the office of postmaster who does not reside at the place where the office is kept. But the court held that this provision was directory to the postmaster-general, and, indeed, was imperative on him; but that, until he acted, the postmaster and his sureties were responsible to the depart ment, and to individuals who should be injured by any neglect of duty in the office; that, if the postmaster had intended to remove, about which fact there was contradictory evidence, the weight of the evidence being decidedly against the allegation that he had removed, it could constitute no justification to the defendant.

The evidence being closed, the district-attorney claimed a conviction of the defendant under that part of the twenty-second section of the post-office act of 1825, which provides that, "if any person shall steal the mail, or shall steal or take from, or out of, any mail, or from, or out

of that of the United States. So where a person embezzles money contained in a letter directed to another person of the same name and delivered by a letter carrier to another for him, he is not guilty under the United States law.

A letter was delivered to Parsons by a person with whom the mail carrier had left it. It was addressed to "Charles H. Parsons," and contained another letter and $33 in money. It was not intended for defendant, but for another person of the same name. Defendant opened it and is charged with appropriating its contents. The indictment was found under section 22 of the act of March 3, 1825.

BETTS, J. The facts found by the special verdict are within the letter of the statute. The letters had been in a post-office, and were opened, and their contents embezzled by the defendant, before they had been delivered to the persons to whom they were directed. The special verdict, however, raises the question whether the intent and proper construction of the twenty-second section of the post-office act of March 3, 1825, embraces the case.

The forty-first section of the act of July 2, 1836,1 gives to persons intrusted with the delivery of letters the character of mail carriers, within the meaning of the twenty-second section of the act of 1825. Therefore, the letters in question in the present case, while in charge of such letter carrier, are to be regarded as in the post-office, or in the custody of a mail carrier. What, then, is the true import and force of the phrase," shall have been in a post-office or in custody of a mail carrier," and of the phrase, "before it shall have been delivered to the person to whom it is directed?" Are they of unlimited extent, covering every condition of a letter until it reaches its rightful destination? To give the language this construction would be to continue letters which had been once in the mail still under the power and control of the Federal government, in every change and transfer from person to person and place to place, and without limitation of time. Legislation of such scope and extent would clearly not be in furtherance of the functions and duties of the post-office department, but in protection of the private property of individuals, after it had become detached from that department, and was wholly out of the charge of its agents. Such legislation would thus necessarily take the quality and form of a municipal regulation, governing the relations and responsibilities of individuals to each other, in respect to letters and their contents which had been in the post-office although not obtained from the post-office or any of its agents, or in the possession of a party through any act of fraud or deceit against the post-office laws. And Congress would thus in effect be vested with the power to compel every person into whose possession a letter which had been in the post-office should come, to

15 U. S. Stat. at Large, p. 89.

.

The design of the taking is shown by the embezzlement or destruction of the letter. But is a simple taking, without a felonious intent, punshable the same as for stealing? We think, when the statute is taken together, and its object and scope considered, that such a construction can not be sustained. To come within this provision of the statute, the taking must not only be unlawful but felonious; it must be a clandestine taking such as would amount to larceny of personal property. This construction is not only justified by a different punishment being provided in the same section, for taking a letter from a post-office, but by the first taking being placed in the same class and punished as for the stealing or the embezzlement of a letter.

The conduct of the defendant was highly reprehensible in refusing to surrender the office, on the demand of the postmaster; and still more so on his obtaining possession of the letters delivered to the postmaster, under the forms of law. This proceeding was an aggravation of his offense, and can only be palliated, in any degree, by the ignorance of those who are engaged in it. It was a prostitution of the forms of law, to attain an illegal object. But unless the defendant in taking the steps he did take, had a criminal intent, he is not guilty under the above section. If he was honestly engaged in the prosecution of what he supposed to be right, and his whole conduct evinced nothing more than a disposition to hold the office and fairly to discharge its duties, he was not guilty of a felonious taking within the meaning of the statute. It is the intent, in all instances, which constitutes the crime, and which is ascertained by the acts of the offender. In many instances, the act itself being a crime of great enormity, the whole burden of proving an innocent intent is devolved on the party accused. In this case enough appears in the evidence to show that the defendant did not intend to steal the mail, or any letters or packets from the post-office. Of this, however, the jury can judge.

Verdict, not guilty.

POST-OFFICE LAWS-STEALING FROM LETTER AFTER DELIVERY BY CARRIER.

UNITED STATES v. PARSONS.

[2 Blatchf. 104.]

In the United States Circuit Court, New York, 1849.

After the Voluntary Termination of the custody of a letter by the post-office depart. ment or its agents, the property in and right of possession to the letter belong wholly to its real proprietor, and his rights are under the guardianship of the local law and not