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.

take upon himself the responsibility of carrying and delivering it to the person to whom it should be directed.

We think that the object of this twenty-second section does not look beyond a possession of letters obtained wrongfully from the post-office or from a letter carrier. Its design is to guard the post-office and its legitimate agents in the execution of their duties, in the safe keeping and delivery of letters. After the voluntary termination of the custody of a letter by the post-office or its agents, the property in and right of possession to it belong wholly to its real proprietor, and his rights are under the guardianship of the local law, and not of that of the United States. The delivery of the letter in the present case by the letter carrier was to a person at the house, as was supposed by both, of the person to whom it was directed. The defendant was not then at the house, and in no way participated in the delivery. The person who received the letter supposed that it belonged to the defendant, and afterwards carried it and delivered it to him at a different place, as being rightfully his. All action and authority of the Post-office Department, in respect to the letter, terminated with its delivery to that third person; and, in our opinion, it was not intended that the act of Congress in question should apply any longer than while the letter should be within the power and control of that department. From that time the law of the State takes authority over it, as the property of one of its citizens.

A question was raised on the argument as to the power of Congress to legislate on the subject indefinitely, and to pass laws governing the conduct of persons in respect to letters which have been mailed, after such letters have become entirely disconnected from the Post-office Department. But the construction we have given to the act, limiting its operation to letters yet remaining under the authority of the department, renders it unnecessary to consider this question.

Judgment for defendant.

POST-OFFICE LAWS-STEALING FROM MAIL.

UNITED STATES v. WINTER.

[13 Blatchf. 333.]

In the United States Circuit Court, New York, 1876.

Stealing a Letter by a post-office clerk is not an offense against the United States unless it is a letter committed to the charge of the United States for transportation and delivery.

BENEDICT, J. The accused was indicted under section 5467 of the Revised Statutes. The indictment contains several counts, but all ex

cept the first were nol. prossed, on motion of the district-attorney. Upon the first count a conviction was had and now the accused moves in arrest of judgment, upon the ground that the count upon which he was convicted charges no offense. The count avers that the accused was clerk and assistant postmaster, and did steal and carry away from and out of a certain letter (describing it by its direction), which letter then and there came into his possession, and had not then and there been delivered to the party to whom it was directed, an article of value (describing money). There is no averment that the letter from which the money was taken was a letter intended to be conveyed by mail, or that it had been deposited in any post-office, or in the charge of the accused, or that it came into his possession in the regular course of his official duty. In order to sustain the indictment, it has, therefore, been argued, and necessarily, that the act of stealing money from out of a letter, whenever committed by a person employed in the postal service, is an offense against the United States, whether the letter be at the time in the charge of the United States or not. It is not to be denied, that the language of the clause in section 5467, upon which this indictment is framed, affords room for such an argument; for, while, in the first part of the section where the offense of stealing a letter is created, the provision requires that the letter should be one intended to be conveyed by mail, or to be carried or delivered by some person employed in the postal service, or forwarded through or delivered from some post-office, in the clause under consideration, the letter is described simply as a letter "which shall have come into his possession, either in the regular course of his official duties, or in any other manner whatever." But, it cannot be supposed that it was intended, by this clause, to protect the contents of any letters other than such as come within the jurisdiction of the United States, and for the safety of which the United States is responsible, by reason of a deposit thereof in some post-office, or in charge of some person employed in the postal service; and this is indicated by the provision in this same clause, which excludes from the provision any letter after its delivery to the person to whom it is directed. No reason is suggested for this exception, if it was intended to protect all letters, whether in charge of the United States or not. The clause must, therefore, be understood as if express reference had been made to the description given in the first part of the section, and as having application, therefore, only where the letter from which the money is abstracted was intended to be conveyed by mail, or to be carried or delivered by a mail carrier, or other person employed in some department of the postal service, or forwarded through, or delivered from some post-office. If this be the true construction to be placed upon the clause of the statute under which this indictment is framed, it is necessary to insert in the

indictment an averment showing that the letter from which the money was taken was intended to be conveyed by mail, or carried or delivered by some employe of the postal service, or to be forwarded through, or delivered from some post-office. The first count of this indictment, upon which alone a verdict was asked and taken, contains no such averment. For all that appears, the letter in question might have been a letter never sent, or intended to be conveyed, by mail, or in any other way placed in the charge of the Post-Office Departmentpicked up, it may be, in the street by the accused. This omission of a necessary ingredient of the offense is a fatal defect, and compels an arrest of the judgment.

POST-OFFICE LAWS-STEALING LETTER AFTER DELIVERY.

UNITED STATES v. DRISCOLL.

[1 Lowell, 303.]

In the United States District Court, Massachusetts, 1869.

1. An Errand boy who is Authorized to call for and receive his employer's letters arriving by mail, and who, after receiving such a letter, containing an article of value, embezzles it, can not be convicted under section 22 of the act of March, 1825, of tak ing from the mail, and embezzling the letter, because his taking was lawful.

2. Nor can he be Convicted, under another clause of the same section, of opening a letter not containing an article of value, before it shall have been delivered to the person to whom it was directed, if he took it in pursuance of his duty as errand-boy, because the delivery to him was a delivery to his employer within the meaning of that clause. 3. It is not the Purpose of the post-office acts to regulate the conduct of masters and servants, but only to protect the mails.

LOWELL, J. The defendant is an errand-boy employed by the firm of Hallet & Davis, of Boston, whose duty required him to take from the post-office all letters arriving by mail to the address of his em ployers. He has been convicted of having embezzled or destroyed two such letters so received by him, one containing, and one not containing, an article of value. The two indictments are framed under two clauses of section 22, of the act of 3d of March, 1825.1 By the first clause, it is made penal for any person to take the mail, or any letter or packet therefrom, or from any post-office, whether with or without the consent of the person having custody thereof, and to open, embezzle, or destroy any such mail, letter, or packet, the same containing any article of value; and by the second clause, the offense is committed if any person shall take any letter not containing an article

14 Stats. 109.

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of value out of any post-office, or shall open any letter which shall have been in any post-office, before it shall have been delivered to the person to whom it is directed, with design to obstruct the correspondence, or pry into another's business or secrets. The question in this case is, whether the agent or servant of a person to whom a letter is addressed is within the meaning of the above clauses of the twenty-second section?

The scope and purpose of these clauses, and of the whole section appear to be to protect the mails from every kind of danger while in the custody of the United States. Some of the language is broad enough to include within its literal meaning every letter that has ever been in a post-office, and every person that can deal with any such letter before it reaches the manual possession of its owner. Taken literally, the first clause is broad enough to cover even the person to whom the letter is addressed. But the law must have a reasonable construction, and one in accordance with the subject-matter, which is the due and proper custody and delivery of the mail. It must be taken to refer to the letters with which the United States have concern under their power and duty to transport and deliver the correspondence of the country. It can not be that the owner of a letter would be liable for such an act, and it is clear that the same rule applies to the agent. The first clause refers to an unlawful taking, whether with or without the connivance of an officer of the department, and without such a taking, the offense is not complete. Here the taking was lawful. The second clause of the section is not so clear. the taking is not an essential element of the offense. "take or open," etc.; the language is disjunctive. delivery means in this, as in the other clause, delivery to the person or to his authorized agent. When such a delivery has been made, the government is discharged of further responsibility, and its functions ceases to operate upon the letter. If the clerk or servant of the owner betrays his trust, that is a matter to be looked into by the authority of the State, whose laws regulate such agencies. If those laws make the act an embezzlement, there will be a remedy; if they do not, it would not be becoming in Congress to do so if it could, which may be doubted. These letters had been delivered to the persons to whom they were directed, because they had been delivered to a servant duly authorized by them to receive their letters.

Under this clause

The law reads, But I think the

Two cases have been cited by the defendant's counsel: United States v. Parsons and United States v. Sander;2 in the latter of which it was held that if a letter had been delivered to an authorized person, and the

12 Blatchf. 104.

2 DEFENCES.

2 McLean, 598.

15