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§ 924. Putting the mail carrier in fear, and his life in peril or danger, is putting his life in jeopardy, within the meaning and intent of the act of congress of April 30, 1819, declaring that if, in robbing the mail, "the offender shall wound the person having the custody thereof, or put his life in jeopardy by the use of dangerous weapons," such offender shall suffer death. United States v. Wood,* 2 Wheeler, 325.

§ 925. On an indictment for robbing the mail it was not necessary that the carrier from whom it was taken should have taken the oath prescribed by the postoffice law. United States v. Wilson, Bald., 78.

§ 926. On an indictment for robbing "the mail" it is not essential that the whole mail be robbed, but it is sufficient that any bag, valise or portmanteau containing mail be taken and cut into and its contents rifled. Ibid.

§ 927. On an indictment for robbing the mail and putting the carrier's life "in jeopardy " it is sufficient to prove that the robbers showed the carrier deadly weapons, thereby putting him in fear of his life, and that they effected the robbery by these means. A person is in jeopardy when placed in circumstances which would justify his taking the life of his assailant. Jeopardy means danger, peril, reasonable fear, and well-grounded apprehension. Ibid. § 928. Theft by carrier.- Under the twenty-second section of the postoffice act of 1825, declaring it to be an offense “if any person shall steal the mail, or shall steal or take from or out of any mail, or from or out of any postoffice, any letter or packet," etc., one charged, as carrier, with stealing the mail, may be convicted, and cannot plead in justification that he is a carrier. United States v. Burroughs,* 3 McL., 405.

§ 929. A carrier of the mail is "a person employed in any of the departments of the general postoffice," within the meaning of section 18 of the act of April 30, 1810, "regulating the postoffice establishment," and inflicting certain penalties for stealing letters from the mail. United States v. Belew,* 2 Marsh., 280.

§ 930. A letter carrier was charged with embezzling a letter which was intended to be conveyed by mail, and which contained an article of value, which had been intrusted to the accused, and had come into his possession as such letter carrier. Held, that the indictment charged an offense under section 5467 of the Revised Statutes. United States v. Pelletreau,* 14 Blatch., 126.

$931. Embezzlement.—An errand boy, whose duty it was to take from the postoffice all letters arriving by mail to the address of his employers, was indicted under section 22 of the act of March 3, 1825, for embezzling letters so received, and for opening such letters. Held, that he was not liable under said section. United States v. Driscoll,* 1 Low., 303.

$932. There are two offenses defined in section 279 of the Revised Postal Laws of 1872, each punishable by imprisonment, to wit, embezzling a letter and stealing its contents. United States v. Taylor,* 1 Hughes, 517.

§ 933. An embezzlement of money order funds by a postmaster is shown where the postmaster has actually applied the funds to his own use, or where he has failed to pay over such funds when required, either by the law or regulations, or when demand is made by an officer authorized for that purpose. It is not a defense that the funds were temporarily extracted and that the postmaster intended to replace them, or that, after proceedings against him, he had paid the money embezzled over to the department. United States v. Gilbert,* 17 Int. Rev. Rec., 54.

§ 934. Upon an indictment of a postmaster for embezzling letters containing articles of value, where none of the other postmasters along the intended route of the letters, and through whose hands the letters must have passed in order to reach their destination, were called as witnesses, and the defendant was proved to be of good character, the evidence of a witness of bad repute among his neighbors, who testified that he saw the defendant open the letters and take their contents, under circumstances very improbable, was held to be of very little weight. United States v. Emerson, 6 McL., 406.

§ 935. Section 279 of the act approved June 8, 1872,- which act was a revision,- has been transcribed verbatim in the Revised Statutes, section 5467, until the latter and concluding part of the section is reached; there the words "every such person shall, on conviction thereof, for every such offense," have been omitted, and as the section now reads no penalty is prescribed for any offense under that section, save for stealing the valuable contents of a letter by an employee in the postal service. The section cannot be made to cover the offense of embezzling a letter with valuable contents. United States v. Long,* 10 Fed. R., 879.

§ 936. Stealing from the mail.— The mail of the United States embraces everything which may by law be transported or conveyed by post, and every unlawful taking from the mail of anything which constitutes a part of it is a crime. United States v. Dennis,* 1 Bond, 104. See $$ 873-883.

§ 937. A person employed in the postoffice department who steals any article of value

from the mails is liable under section 12 of the act of 1864, no matter whether the article is specifically enumerated as mailable or not. United States v. Randall,* Dealy, 524.

§ 938. It is not an offense punishable by the United States for a postoffice official to steal the contents of a letter, unless the letter came into the hands of the postoffice department for transportation and delivery. United States v. Winter,* 13 Blatch., 333.

§ 939. On an indictment for stealing a letter it is no objection that the letter is a decoy sent on purpose to entrap the defendant. United States v. Cottingham,* 2 Blatch., 470.

§ 940. Under section 5467 of the Revised Statutes, which declares it to be an offense for any person employed in any department of the postal service to steal or take any article of value enumerated in the statute from any letter intended to be conveyed by mail, which comes into his possession "either in the regular course of his official duties or in any other manner whatever," a local mail agent at a railway station, also in the employment of the railroad as telegraph operator, who has taken the usual oath of office for the faithful performance of his duties, but receiving no compensation from the government, and whose duty it is to receive the mail-bags from the trains, and deliver them to the trains, is punishable for stealing an article of value from a letter delivered to him to be delivered to the mail agent on the train to be mailed. United States v. Hamilton,* 9 Fed. R., 442.

§ 941. Under section 21 of the act of March 3, 1825, declaring that "if any person employed in any department of the postoffice establishment shall secrete, embezzle or destroy any letter, mail or bag of letters with which he shall be intrusted, or which shall have come into his possession, and are intended to be conveyed by post, containing any bank-note,” etc., an indictment which alleges that the letter containing the bank-note was put into the postoffice to be conveyed by post, and came into the custody and possession of the defendant as driver of the mail stage, is sufficient. It need not be alleged or proved that the letter was mailed. United States v. Martin,* 2 McL., 256.

§ 942. Where a portion of certain bank-notes belonged to S. and B., and the residue to C. and K.; and the latter persons deposited their notes with the former persons to be forwarded to the bank to procure exchanges; and all the notes were inclosed in a letter by S. and K., which was signed by them; and all the notes were stolen from the mail, the property in the notes was correctly laid in the indictment as that of S. and K. United States v. Burroughs,* 3 McL., 405.

$943. Upon the trial of an indictment for stealing a letter from the mail, which letter contained a draft, where there is no evidence implicating the defendant with the violation of the mail shown to have taken place, except evidence of the possession by the defendant of the draft, it will be for the jury to determine, first, whether the evidence sufficiently proves the fact of the possession of the draft by the defendant; and secondly, whether, if in his possession, he abstracted it from the mail. If he came feloniously into possession of the draft by any other means than by stealing it from the mail, the circuit court has no jurisdiction. United States v. Crow,* 1 Bond, 51.

§ 944. Evidence of the previous good character of a person indicted for stealing a letter from the mail, and proof that, on hearing of the charges against him, he came from a distance to his home and courted a full investigation of the charges, is entitled to weight, unless the evidence of guilt is clear beyond a reasonable doubt. Ibid.

§ 945. A postmaster was indicted for stealing a letter from the mail containing money. The good character of the defendant was proved, and all the persons through whose hands the letter would pass in reaching its destination were not examined as witnesses. The court charged the jury that the defendant's character should have weight in their deliberations, and that unless they were satisfied beyond a reasonable doubt of the defendant's guilt they ought to acquit. United States v. Whitaker,* 6 McL., 342.

946. Where the defendant was charged with receiving an article which had been stolen from the mail in the state and district of Illinois, knowing the same to have been so stolen, and it was proved that the letter containing the article was mailed at Fairfield and directed to a person at Shawneetown, the circuit court for the district of Illinois charged the jury that, if they were able to say from this proof that this mail route was in the state of Illinois, it was sufficient proof of the place of the commission of the crime to sustain the charge. United States v. Keene,* 5 McL., 509.

$947. In order to convict a person on a charge of buying or receiving a land warrant, knowing that it had been stolen from the mail, contrary to the forty-fifth section of the postoffice act of 1825, punishing any person who shall "buy, receive or conceal, or aid in buying or in concealing, any article mentioned in the twenty-first section of this act, knowing the same to have been stolen or embezzled from the mail of the United States, or out of any postoffice," it must be proved that the land warrant was stolen from the mail by the person by whom it was alleged to have been stolen, and that the defendant received it knowing it to have been so stolen. Ibid.

$348. Treasury notes issued by authority of the act of congress passed October 12, 1837, are promissory notes within the meaning of the act of congress, approved March 3, 1825, punishing the buying, receiving or concealing of certain articles, knowing them to have been stolen from the mail. United States v. Hardyman,* 13 Pet., 176.

§ 949. Obstructing the mail.- Where the agent of the legal owner of lands, who had been placed in actual possession thereof under the order of a competent judicial tribunal, executed by the proper officer, placed obstructions on the track of a railroad running through the land, and refused to remove the obstructions or allow the train to proceed when told that it carried the United States mail, he was held by the commissioner on the preliminary hearing on his recognizance to answer. United States v. De Mott,* 3 Fed. R., 478. See SS 871, 872. $950. Driving a carriage through a crowded and populous street at such a rate or in such a manner as to endanger the safety of the inhabitants, is an indictable offense at common law. And if a mail carrier so drives his carriage, a constable may stop him, without a warrant, in order to prevent a breach of the peace, without rendering himself liable for obstructing the passage of the mail. United States v. Hart,* Pet. C. C., 390.

§ 951. Under the act of congress of 1825, punishing "any person who shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier," a constable is liable for arresting a carrier while engaged in carrying the mail, upon a warrant, in an action of trespass, issued by a justice of the peace. The mere service of the warrant is not punishable, but any detention of the carrier is within the act. United States v. Harvey,* 8 Law Rep., 77.

§ 952. Municipal corporations have the right to make ordinances regulating the speed of railroad cars and trains within the corporate limits, as well of those carrying the mail of the United States as of those which do not. The fact of conveying the mail does not exempt the officers of the railroad company from fine for breach of such regulations. And this, notwithstanding the act of congress punishing any person who "shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage conveying the same. Obstruction of Mail,* 5 Op. Att'y Gen'l, 554.

§ 953. An indictment for obstructing and retarding a horse and vehicle while carrying the mail is not sustained by proof of preventing a horse from being taken out of the stable to be used for the purpose of carrying the mail. United States v. McCracken,* 3 Hughes, 544.

§ 954. False return by postmaster.- The act of June 30, 1879, declares "that a postmaster making a false return shall be deemed guilty of a misdemeanor," etc. Held, that a person aiding a postmaster to make a false return is liable to the punishment provided by the statute. United States v. Snyder,* 3 McC., 377; S. C., 8 Fed. R., 805.

955. Franking printed matter sealed in envelopes for another is not an offense under the law punishing the franking of letters for another. Dewee's Case,* Chase's Dec., 531.

2. Non-mailable Matter.

SUMMARY- Letters and circulars concerning lotteries; evidence, § 956, 957; laws apply to sealed letters, and are valid, § 958.-Scheme for circulating counterfeit money, § 959; gist of the offense under section 5480; evidence, § 960.— Giving information as to things calculated to produce abortion or prevent conception, §§ 961–965, 970, 972; immaterial that the articles would not produce the effect intended, §§ 964, 935.— Immaterial that articles could not be obtained at place designated, § 966.- Meaning of word indecent, § 967.- Law does not apply to private sealed letters, §§ 968, 969.— Sending articles in answer to a decoy letter, 970, 973.- Powers of congress, $$ 971, 972.- Causing articles to be mailed by an

other, § 974.

§ 956. Under section 3894, Revised Statutes, punishing any person who shall deposit or send by mail any "letter or circular concerning lotteries," etc., it is not necessary for the government to prove that the lottery was one established by law, having a legal existence, and that the parties issuing the tickets, etc., were a corporation, as they purported to be, and had or carried on a real lottery. United States v. Noelke, $$ 975-987.

§ 957. In a prosecution for sending circulars relating to a lottery through the mail, based on section 3894, Revised Statutes, the occupation of the defendant, as dealer in lottery tickets, and other extrinsic circumstances, are proper to be considered by the jury, on the question whether the circular related to a lottery. On this question they may also consider the fact that an act creating the lottery was on the statute book of a state. Ibid.

In re

§ 958. The laws of the United States prohibiting the depositing in the mail of letters or circulars concerning lotteries apply to sealed letters, and are constitutional and valid. Jackson, $$ 988-990. See § 1018.

§ 959. Evidence proving that the defendant devised a scheme for putting counterfeit money into circulation by sending through the mail to a certain person a letter calculated to induce that person to purchase counterfeit money at a low price, for the purpose of putting it off as good. is sufficient to sustain an indictment under section 5180 of the Revised Statutes, although there is no evidence to show an intention to defraud any particular person. United States v. Jones, $$ 991–993.

§ 950. The gist of the offense created by section 5480 of the Revised Statutes consists in the abuse of the mail. The corpus delicti is the mailing of the letter in execution of the unlawful scheme. There being direct proof of the mailing of the letter by some one, and the letter itself showing its unlawful character, it is competent to prove that the defendant was the sender by his own admission. Ibid.

§ 961. Under section 3893 of the Revised Statutes, a publisher of a newspaper may be punished for knowingly mailing a newspaper containing an advertisement from which no one could fail to understand that it was intended to give information where, how, and by whom articles and things designed for the procuring of abortion and prevention of conception could be obtained and made. It is sufficient if the advertisement gives the forbidden information indirectly. United States v. Kelly, g 994, 995. See § 1018.

§ 962. It is not necessary that any particular article or its specific properties should be indicated in the advertisement. Ibid.

§ 953. Section 3893, Revised Statutes, makes it an offense to mail a notice showing where, or how, or of whom, or by what means certain articles (to prevent conception or procure abortion) can be obtained or made. Where the indictment alleges in the conjunctive "where they may be had and made," the proof of either is an offense, and the indictment is not bad for the conjunctive allegation. Ibid.

§ 964. Under the act of July 12, 1876, prohibiting the sending through the mails anything designed or intended to prevent conception or procure abortion, the fact that the articles sent in answer to letters asking for something which might have that effect would not have that effect is not material, the articles being sent with the statement that they were just what the writer wanted. Bates v. United States, SS 1010-14.

$965. It is no defense to an indictment for depositing in the mail an article designed or intended to prevent conception, etc., to show that in fact the powder was harmless. The words designed or intended for the prevention of conception, etc., used in the statute are simply descriptive of the article made contraband and do not relate to the knowledge or intent of the sender. United States v. Bott, $$ 996, 997.

$966. On an indictment for depositing in the mail an advertisement or notice, giving information where and of whom certain articles made contraband by statute could be obtained, it is immaterial whether or not such articles could have been obtained at the place designated Ibid.

§ 967. The word "indecent," as used in the statute forbidding the mailing of any written or printed communications containing lewd, lascivious, obscene or indecent matter or epithets, means immodest or impure; and language, though coarse and even profane, is not within the inhibition of the act. So the epithet, “d—n scoundrel and rascal," is not indecent, within the meaning of the act. United States v. Smith. § 993. See § 1021.

$968. Section 3892, Revised Statutes, as amended by the act of July 12, 1976, declaring that "every obscene, lewd or lascivious book, pamphlet, picture, paper, writing, print, and every letter upon the envelope of which, and every postal card upon which indecent, lewd, obscene . . . terms or language may be written or printed, are hereby declared to be nonmailable matter," and punishing the mailing of such matter, does not include a private sealed letter, outwardly unobjectionable, addressed to a certain person, although it contains obscene and indecent matter. United States v. Williams, $$ 999-1002.

969. The statute forbidding the deposit in the mails of any "obscene, etc., paper, writing, print, or other publication of an indecent character," does not include a sealed letter though obscene and indecent. It is not a publication within the meaning of the statute, if scaled. Though it seems that such matter on the outside of an envelope would be within the law. United States v. Loftis, $ 1003, 1004.

$970. The act of congress of July 12, 1876 (19 Stat. at Large, 90), which punishes any one who shall knowingly deposit in the mails any letter giving information where any article designed to prevent conception can be procured, does not apply to a case where a person, in answer to a decoy letter written by a detective in the name of a fictitious person, mails an answer which, of itself, conveys no information as to where such article can be obtained. United States v. Whittier, $ 1005–1009. See § 1016.

$971. Congress has plenary power over the mails and postal service of the United States; and while it has no power to conserve public morals or to prevent the use of means to prevent conception or procure abortion, yet it has the right to declare such articles or anything 273

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relating thereto to be unmailable, and to punish any one depositing such unmailable matter in the mails. Ibid. See § 1015.

§ 972. In construing the statute forbidding the sending through the mails of anything to prevent conception or to procure abortion, or anything relating thereto, regard must be had to the limitations of the powers of congress, and the purpose of congress to prevent the mails from being used to transport matter corrupting to public morals. Ibid.

973. To an indictment under the act of July 12, 1876, punishing any person who shall deposit or cause to be deposited for mailing or delivery anything declared to be non-mailable, it is no objection that a detective of the postoffice department sent letters to the defendant requesting him to send the communications under fi titious names, and they were sent to the detective and received by him under those names. They were communications sent to a real person under a fictitious name. Bates v. Un ted States, SS 1010-14.

$974. The act of July 12, 1876, declaring that any person who shall knowingly deposit or cause to be deposited, for mailing or delivery, anything declared to be non-mailable matter, is deemed to be guilty of a misdemeanor, applies as well to one causing such matter to be mailed by another person as to one mailing it himself. Ibid.

[NOTES. See §§ 1016-1021.]

UNITED STATES v. NOELKE.

(Circuit Court for New York: 17 Blatchford, 554-572; 1 Federal Reporter, 426-444. 1830.)

Opinion by CHOATE, J.

STATEMENT OF FACTS.- The defendant was indicted under section 3894 of the Revised Statutes, which provides as follows: "No letter or circular concerning lotteries, so called gift concerts, or other similar enterprises, offering prizes, or concerning schemes devised and intended to deceive and defraud the public for the purpose of obtaining money under false pretenses, shall be carried in the mail. Any person who shall knowingly deposit or send anything to be conveyed by mail, in violation of this section, shall be punishable by a fine of not more than $500, nor less than $100, with costs of prosecution.' The indictment contained two counts. The first count charged that the defendant did "unlawfully and knowingly deposit in the mail of the United States, and send to be conveyed by the said mail, a certain letter and circular concerning a lottery, which said letter and circular was then and there of the tenor and in the words and figures following, that is to say:

"NEW YORK, Nov. 7, 1879. "Chas. D. J. Noelke, Banker and Broker,

"238 Grand Street, bet. Christie and Bowery.

"Dear Sir:- Yours of 5th inst., inclosing $2, received. Inclosed please find 2La. tickets, as pr. your order.

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"All prizes payable in full on presentation of ticket.

"Official copy of drawings mailed as soon as received.'

which said letter and circular was then and there inclosed in an envelope and addressed as follows, that is to say:

"M. Many,

"c. o. P. Howell, Esq.,

"Trenton, New Jersey,

"Mercer Co.'"

The second count charged that the defendant "did unlawfully and knowingly deposit in the mail of the United States, and send to be conveyed by the said

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