UNITED STATES fl. MITCHELL
w: D. Penn8yl'Dania.
October 24, ts!:!!:!.
P08T-OFFIOE-USE OF }!AILS TO DEFRAUD.
For the purpose of deceiving an accident insurance conipany as to the date of tbe remittance of a st:m of money necessary to save from forfeiture the certificate of one of the defendants, and tQ, promote the allowance of his claim to indemnity, lost by the failure to remit in time, the defendants changed the date of the mailing stamp in the post-office where the letter was mailed, and stamped the letter with a false post-mark date, so as to give it the appearance of having been mailed several days sooner than it really was. Held, that the case was not within the intendment of section 5480, Rev. St., relating to schemes to defraud, to be effected by opening correspondence by mail, etc. 1
On Demurrer to Indictment. M. F. Elliott, for demurrer. The Un1ted States Attorney, contra.
ACHESON,J. This indictment is under section Rev. St., which providE;ls as follows:. . . "If any person. baving devised or intending to devise any scheme or artifico to defraud. or [to] be effected by either opening or intending to open correspondence or communicationwitb any other person 'I< * * by means of the.post-office establishment of the United States, or by inciting such other to open communication with the person so devising orintending. shall, and foI' executing such scheme or artifice, or atternptiug so to do, place any letter or packet in any post-office of the United States. or take or receive any therefrom, such person so misusing the post-office establishment shall be punishable. '. · ." " Discarding verbiage, the substantial facts to be extracted from the indictment are these: Austin Mitchell, one of the defendants, being the holder of a, certificate of membership in the Guaranty Mutual Accident Association of the City of New York, received an assessment notice in writing, requiring him to pay to the. association three dollars on or before April 19, 1887; in default of which payment his right to future indemnity would be lost. He neglected to comply with the requirement of the notice, and thus forfeited his rights. He subsequoQtly .set up a claim against the association for indemnity for an alleged accident happening to him shortly after April 19, 1887, and in furtherance of this claim in'Closed the aforesaid assessment notice, with three dollars, in an envelope addressed to the said association at New York city. This letter was rllailed at Millerton, Pa., on April 27, 1887; but in order to decei"e.-,tpe qillcers of said association, and induce them to believe .that it mailed in due time, the defendants changed the date of the mailing sttimp of the post:-office at Millerton, bytaking out the figures 27 ,aud 15, arid stamped the envelope with the date, April15, 1B87; instead of the true date, April 27, 1887. While not expressly allegeij:iri htdictment, the fact was stated by the district attorney at
lAs to what COhs'titutes the offense of using themailstodefraud.underltev.St. U. S.
v. Watson, 35 Fed. Rep. 358, and note.
the argument that Qne of the defendants was an employe in the post-office at Millerton. Does section 5480 cover the case? I confess that the question has been to me one of some difficulty, but I have finally reached the negative conclusion. Acareful study of the language employed has conYinced me that it was not intended that this section should embrace every case where a letter promotive of, or connected with, a fraudulent design, may be sent through the post-office by the person engaged in or contemplating the fraud. As was said in Brand v. U. S., 4 Fed. Rep. 395, the scheme to defraud within the meaning of said section is one which is to be effected by the deviser of it opening a correspondence by mail, or by inciting some one else to open such correspondence with him. To constitute the statutory offense, then, something more is necessary than the mere sending through the mail of a letter forming part, or designed to aid in the perpetration, of a fraud. The scopeof the section was,considered in U. S. v. Owerul, 17 Fed. Rep. 72, 74, by Judge TREAT,Wh,O there: said: "It c.ppears to the court that the act was designed to strike at COlDmon schemes of fraud, whereby, through the post.office, circulars, etc.; are distributed, generally to entrap and defraud the un wary; and not the ()f commercial correspondence solely between a debtoralld creditor." And as showing that such was the true interpretation, a pertinent reference was made to the concluding clause of the section, which pl;ovides that the indictment may charge offenses to the number of three, when committed withitithe same six calendar months; but the court shall give a single sentence, apportioning the punishment especially to the degree in which the abuse of the post-office establishment cnters as an instrument in the fraudulentschetne. It will be perceived that the statutory offense is complete when the letter is placed in the post-office. But in the case in hand the fraudulent act was committed after the letter had been placed in the post-office, andCOllsisted in the misuse of the mailing stamp, whereby a false date was given to the post-mark. A penal statute is not to be extended by so as to take in doubtful cases. ' Whatever is not plainly within its provisions should' be regarded as without its intendment. The demurrer is sustained.
THE WYOMING. THE DACOTAH. BOSCHERT v. THE WYOMING. SAME v. THE DACOTAH.
(DiBfrict Oourt, E. D. E. D.
October 20, 1888.)
MARITIME LIENS-GOODS SOLD FOR SPECULA'rIVE PURPOSES.
There is 'no lien for salt purchased by the owners of a steamer to be taken to another port and sold upon speculation, the s,ame not having been,furnished as supplies. '. .'