WALSTER V. UKITED STATES.
and, under the rules of criminal pleading, the clause must be held defective. It may be further said that, under the particular subdivision of the federal statute which applies to this clause of the indictment, it would seem to be requisite for the indictment to further aver that the unauthorized act of suppression was committed with the intent to affect the election, or the result thereof. 31 Fed. Rep. 797, and the cases of Wright and Baldridge, before cited. For the reasons given the indictment is insufficient, and the demurrer of defendants must be sustained; and it is so ordered.
WALSTER 11. UNITED SUTll8.
(Oircuit Oourt. N. D. Ne:w York. July 11, 1890.)
LAROBNT FROH MAILS-INDICTMENT-ALLEGATIONS AND PROOI!'.
On an indictment in several counts against an employe of a post-ofllce for embezzling letters, if the proof conforms to the averments in one of the counts in respect of the description of the letters and of the capacity in which defendant was intrusted with them, a motion to acquit on all the counts is properly overruled, though the proof varies from the allegations in the other counts as to those particulars.
SAME....,oONSTRUCTION Ol!' STATUTES.
Letters stamped and postmarked as cominl/; from other ofllces, but which in fact are placed upon the distributing table by the postmaster and an inspector, addressed to a company in the same town, which gets its mail from the office in a pouch of its own, are, if the postmaster and iuspector do not intend to intercept them before delivered to the proper address, letters "intended to be conveyed by mail, " within the meaning of Rev. St. U. S. § 5467, making it an offense for any postal employe to embezzle any letter coming into his possession which was intended to be conveyed by mail, or to be forwarded through or delivered from any post-office. The fact that they were decoy letters is immaterial ona prosecution for their embezzlement.
Error to District Court. Jame8 Bacon, for plaintiff in error.
WALLACE, J. This is a writ of error to the district court to review a conviction of the plaintiff in error for embezzling letters intended to be conveyed by mail, and containing articles of value, he being at the time a person employed in the postal service. The indictment contains eight counts, and i8 based upon section 5467, Rev. St. U. S. Of the eight counts, all but the first, third, fifth, and seventh were withdrawn from the consideration of the jury by the court upon the trial. There was a general verdict of guilty of the offenses charged in the indictment, and a sentence to imprisonment for the term of two years. There was sufficient evidence upon the trial to justify the jury in finding that on the of January 19, 1890, the accused, while engaged in assorting and distributing mail-matter, abstracted four letters from the distributing table of the mail-room in the post-office at Elmira,
retired to a water-closet adjoining the room, and then broke open the letters, llnd appropriated the government notes, bank·bills, and postagestamps which they contained. He was a letter-carrier, and on the occasion in question had assisted several other carriers and clerks in assorting the mail and distributing the letters to the different receptacles, whence they werato ,be taken away by carriers, or delivered at the office to those to whom they were addressed. While thus engaged he was watched by the postmaster and a post-office inspectorfrolll a place of concealment, and when the mail was fully distributed he was seen to retire to a water-closet adjoining the mail-room. He remained there a few minutes, came out, and attended to other duties about the office for a few moments, and ,vas then called into the postmaster's room and searched, and the contents of the letters were found upon his person. The letters thus abstrrtctedwere decoy letters, which had been prepared by Mr. Camp, a post-office inspt'ctor, acting in concert with Mr. Flood, the postmaster, with a view to ascertain who, if any, of the employes of the office was tampering with the mails. The inspector and postmaster had caused several such letters to be prepared, among them nine addressed to the Telegram Company, a publishing concern at Elmira, and to be stamped and postmarked as if mailed from other post-offices. They had inclosed government notes, bank-bills, and postage stamps in these letters, and had caused the letters to be placed with the incoming morning mail, which had been dumped upon the distributing table. When put with the rest of the mail, they were apparently letters which had arrived that morning frbm other post-offices for distribution and delivery at Elmira, according to the usual course of business. The customary way of delivering. matter addressed to the Telegram Company was to put the letters by themselves in a rack, whence they were taken awayin.apouch belonging to the company when called for. When the accused went to the water-closet it was found that but five of the nine decoy letters addressed to the Telegram Company were in the rack. Upon being informed of this circumstance the postmaster and inspector took possession of these letters, and 'kept them. The evidence presented a question of fact whether it was the purpose of the inspector and postmaster to permit the decoy letters to be delivered to the Telegram Compariy in the ordinary way, in case they were not abstracted, or whether 'it was their purpose, when they put them with the mail-matter on the distributing table, to resume control of them after distribution, but before delivery to the company, provided they were not abstracted. 'The rulings of the judge upon the trial which were excepted to by the accused, and as to which error is now assigned, present the questions ",:hether there was a variance between the evidence and the averments of the indictment which required the acquittal of the accused, and whether the letters, inasmuch as they were not mailed in the usual way, but were placed by the postmaster on a distributing table in the office with mail-matter that had already arrived, were letters intended to be conveyed by mail, within the meaning ofthe statute. Each of the five counts upon which the conviction proceeds avers that the embezzled
WALSTER V. UNITED STATES.
letter was one" intended to be conveyed by mail,» and none of them avers that it was a letter intended to be carried by an employe, or intended to be delivered from a post-office. The first and fifth counts aver that the letter described had been intrusted to the accused as a letter-carrier, and had come into his possession as such letter-carrier. The third count avers that the letter described had been intrusted to the accused as a clerk in the post-office, and had come into his possession as suchc1erk. The seventh count avers that the letter described had been intrusted with the accused as a clerk and mail-carrier, and had come into his possession as such clerk and mail-carrier. The first and seventh counts describe the letter as one containing certain specified articles of value, which were then and there the goods and chattels of the Telegram Company; the third count describes the letter as one taining specified articles of value, which were then and there the goods and chattels of Bushrod H. Camp; and the fifth describes the contents of the letter as the goods and chattels of Martin F. Butcher. The court was moved to direct an acquittal of the accusE-d because the evidence was that the contents of the letters were the goods and chattels of Mr. Camp, and it did not appear that the letters were intrusted or came to the possession of the accused as a letter-carrier, and there was therefore a variance from the averments of the indictment. This motion was denied, and an exception allowed. The evidence indicated that the contents of the letters belonged to Mr. Camp, and there was none tending to show that the contents of any of the letters were the property of the Telegram Company, as averred in the first or seventh counts, or of Mr. Butcher, as averred in the fifth count. The evidence also indicated that carriers at the Elmira post-office were sometimes required to assist in the distribution of the mail. Inasmuch as the accused was not indicted for stealing. the contents of the letters, but for embezzling the letters selves, it was unnecessary to aver in the indictment that the contents were the property of any p!;lrticular. person. It would have sufficed to describe the letters and their contents sufficiently for identification, and state the value of the several articles of the contents. Nor was it necessary to aver that the letters were intrusted to the accused, or came to his . possession as a clerk or as a carrier. It would have sufficed to aver that he was a letter-carrier at the time the letters came into his possession. It is a familiar rule that every allegation of an indictment, whether it be necessary or unnecessary, which is descriptive of the identity of the subject of an offense like larceny or embezzlement, must be proved as laid, and tbe unnecessary descriptive matter cannot be rejected as surplusage. Thus in U. S. v. Foye, 1 Curt: 364, the indictment described the embezzled letter as one intended to be conveyed by post "from Georgetown to Ipswich," and the court held that, although it was only necessary to allege that the letter was intended to be conveyed by post, the additional descriptive matter could not be rejected as surplusage, and, not having been proved, there was a variance. It is unnecessary to decide whether there was a variance in the present case or not. The third count of the conio':dned. to the ,proof in respect to the description of the letter