find hilll not guilty of murder, but gtlilty of manslaughter, your verdict will be, as stated, "Not guilty of murder,but guilty of manslaughter;" if you find that the homicide was excusable, as being in self.defense, which is the only excuse proffered here, then your verdict will be, of course, "Not guilty." The verdict was "Not guilty."
UNITED STATES V. ATKINSON.
(District Oourt,.E. D. Michigan· . March 19,1888.)
On :Motion in Arrest of Judgment. The prisoner was convicted upon the first and third counts of an indictmentcharging him with the embezzlement of letters containing money. The first count charged that the defendant, "a person employed as letter carri.er in the postal service of the United States, did embezzle a certaiu .letter which came into his possession as snch letter carrier, * * * .which letter contained four pecuniary obligations of the government of the. United States, to-wit: fonr notes, commonly called treasury notes, each of the denomination and value of one dollar, * * * contrary to the form," etc. The third count charged him in substantially the same language with "secreting" a certain letter. The case was a;gued before the circuit and district judges· .J. W. Finney, for defendant. Oharles T.Wilkin8,Asst. U. S. Dist. Atty., for the United States.
BROWN, 1,·. It is insisted upon this motion that both the first and third counts, one of which charges the defendant with embezzling, and the other with secreting, a letter containing an article of value, are defective in failing to allege that the act charged was done with a criminal intent. Exactly what words are necessary to be used to set forth with sufficient clearness the fraudulent are not stated, b':lt presuming
lIn the case of U. S. v. Harry, arising in the Western district, SEVERENS J., also held, after a careful examination of section 5467, that the penalty attached to both clauses of the;! section, but filed no opinion. .
UNITEP STATES fl. ATKINSON.
them to be "feloniously" or "fraudulently," it is pertinent to inquire whether in the case of statutory offenses like this it is necessary to make use of them. Mr. Bishop states that where a new felony is created by statute, but the statute does not use the word "feloniously," there is a difference of judicial opinion whether the words should be put in the indictment. 1 Bish. Crim. Proc. § 290. But many cases under this or similar statutes have held that offenses under the post-office laws are not felonies, but misdemeanors, and that, if described in the words of the statute, the indictment is sufficient. In U. S. v. Lancaster, 2 McLean, 431, the indictment was similar to the one under consideration, using only the words, "secrete" and "embezzle." The indictment was held sufficient,and it was expressly etated that it was not necessary to charge that the taking was felonious. In U. S. v. Mills, 7 Pet. 138, it was held that an indictment setting forth that the defendant "did procure, advise, and assist one to secrete, embezzle, and destroy a letter," was a misdemeanor, and that, in such cases, it is sufficient to charge the offense in the words of the statute. The indictment was held sufficient. Later cases in the supreme court are supposed to have laid down a more stringent rule, but upon a careful examination, we think they only go to the extent of holding that all of the essential ingredients of the offense must be charged. Thus, in U. S. v. Cook, 17 Wall. 168, it is said that every ingredient of which the offense is composed must be accurately and clearly alleged; and where a statute defining an offense contains an exception in. the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception be omitted, it was held that an indictment founded upon the statute must allege enough to show that the accused is not within the exception; otherwise, if the language of the section defining the offense is entirely separable from the exception. 'l'hecase particularly relied upon is that of U. S. v. GarU, 105 U. S. 611, in which it was held that an indictment for passing a counterfeited obligation of the United States must allege that defendant knew it to be counterfeited; but here was a distinct fact, which it was conceded was necessary to be proven upon the trial, and the court very properly held that it should be averred in the indictment. I take it, however; the rule is different where the fraudulent intent is to be presumed from the act done. 1 Bish. Crim. Proc. §§ 278-290. So, in U. S. v. Britton, 107 U. S. 655, 2 Sup. Ct. Rep. 512, it was held that a count which charged the president of a national bank with having "willfully misapplied" the funds of the. association, should aver that he did so for the benefit of himself, ·orsotne other person, and with an intent to injure or defraud; but the court in delivering the opinion said these words "have no settled technical meaning like the word ·embezzle,' as used in the statutes, or the words, 'steal, take, and carry away,' as used at common law. They do not therefore of themselves clearly and fully set forth every element of the offense charged." The word "embezzlement," of itself, implies a fraudulent and unlawful intent on the part of the person charged. No one can lawfully or honestly embezzle money or other
Certainlyltn ;:omCial'ofthe· cannot,laWfully embezzlea letter infrMted to him hi his official ca,Pacity.In U. S. V. Law8',2"I..ow. Dec.1l5/thewords used in the indictment were simply although the' case was vigorously con"sacrete" and tested, the: point was'not even made that'any further description of the intent washecessary.' $0,' in U; S. v. Sander, 6' McLean, 598, it was held that a count charging that the prisoner secreted and embezzled a certain letter was good. Indeed, the nrstcount of this indictment seems to have direCtly from Wharton's Precedents, 1110, and is one whicn 'hal! been in common use in this district ever siMe the court wItS organized. ' In support of the second Kround of the motion it is urged that the action of the revisors of the statutes in omitting the words contained in seetiotl 279 of the act of June 8, 1872, "every such person shall oncomtietion' thereof for every stich offense," unhitches the penalty in section ,5467 from every offe'nse described therein, except the last one, of stealing and taking articles Of value out of any letter, etc. In support of this objection we are cited to the case of (J.'S. v. Long, 10 Fed. Rep. 879, wherein it Was held that the omission of the words "every such person shall upon conviction thereof for every suchoffense" before the words "shall be punishable by imprisonment," was fatal to the punishment of every offense mentioned in the statute, except the last. Upon a careful reading of the section, we find ourselves una.ble t6concur in the opinion of the le!trned jUdge in this case. Omitting all immaterial clauses, the section; revised, now reads as follows: :"Any person employed in any department of the postal service, who shall secrete. embezzle. or destroy any letter '... '" "'which was intended to be conveyed by mail. ... ... ... and which shall contain any .. ... ... article of value, or writing' representing the same; any such person who shall steal or take any of the things aforesaid out of any letter ... ... .. Shall be punishabltl by imprisonment," etc. . , We are unable to see why the punishment is not as applicable to the first offense of secreting, embezzling, or destroying, as to the second, for stealing and taking from the letters; and it seems to us that the omission. of the words, "every.such person shall, upon conviction thereof; for every such 'offense" is entirely immaterial. Unless we adopt this construction, we must impute to congress the recital and definition of a grave offense in very elaborate langullge, for no apparent purpose whatever. The use of the word "and" to connect the two clauses would have removed every dO\lbt, but WJl think it may be implied. The motion in arrest ,of judgment is therefore overruled.
fiATE .01' CONNEC'1!IOUT t. GOULD·
. STATE OF CoNNECTICUT t1. GOULD
(Olt'/luit (Jout't, N. D. New York.
March 19, 1888.)
CoPYRIGHT-STATE REPORTs-CONNECTICUT DEOISIOlirS.
The act of March 22, 1882; (Acts Gen. Assem. Conn.,) directing the reporter W publish the decisions of the supreme court of errors, andco).>yright the vol· umes. does not prohibit anyone else from ).>ublishing the opimons separately or collectively, but restricts the exclusive light of publication to the Reporu compiled and edited by the reporter.
E. EUery 4nder8Dn. for complainant. N. a..MoaJC, defendants.
W AI.LACE, J. The act of the general assembly olthe state ofConneeticnt(approved March 22,1882) creating the officl'l ofreporter ju.. dicialdecisions:of the supreme court of errors, fixing his salary, and di.. recting those decisions to be'pUblished in volumes lInder the supervision. of the comptroller. and the several volumes copyrighted fortha benefit oftha of the state;, dqes not forbid expressly or by implication the publicl),tion of the opinions of the court, separately or collectively, by any person who chooses to use them, but by reasonable construction restricts the exclusive right of publication to the Reports compiled and edited by the officer who is to receive a salary for the work. The statute undoubtedly contemplates that the Reports which are to be published will be prepared for publication in the usual and convenient form oflaw reports, containing an index and appropriate syllabi accompanying the opinions, which, as the work ofthe reporter, would be the unquestioned and familiar subject of copyright. If it had been the object of the statute to preventthe publication of the judicial decisions of the colirt, otto regulate tbe mode ofpromulgating them, so that they should have uo publicity except in-the desiguated form of official Reports, that iutention could have been', easily manifested by apt language so as to remO\Te all dQlibtjand in view of the serious ql,lestion often debated, but never authoritatively decided by the courts of this country, whether such opinions can be copyrighted by the state, it would seem that the statute would have been so framed as to leave no doubt of the legislative will, psuch an intention had been entertained. THe opinion has been expressed in se\Teral adjudications, by judges whose opinions are .entitled to .the highest respect. 'that .the judicial decisions. of the courtaare not the subject of qopyright, but should be regarded as public property, to be 'freely published by anyone who may choose to publish them. This policy which, it is view has been tll.keh upon· consideratioDs of said, demand, in a country where every persdn 'is presumed and required .to know the law, that the fullest and earliest opportunity of access toihe expositions ofthejudicialtribunals should be afforded to aU. . No .statute should be interpteted, tiriless the language used adinits of no otHer interpretation, to p'ress beyond the certain confinesof}egislative power,
On bill for injunction.