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
embezzled,'and the evidence was such as to authorize the jury to find. that the accused was acting in a clerical capacity, and was intrusted with the letter in that capacity, as is charged in that count. 'If the objection ofvrtrittnce had been presented by a motion to directthe acquittal anhe accused upon all the counts except the third, it would have been suffi. ciently raised,and perhaps would have been well taken. But the district judge was not requested to rule on the sufficiency of the evidence to sustain any particular count or counts, and it would have been erroneous to direct an acquittal when the evidence authorized a conviction upon the thiitd count. The more difficult question in the caSe is whether the letters abstracted were,under the peculiar circumstances, letters intended to be conveyed by mail within the meaning of the statute. If the indictment had charged that the several letters were intended to be delivered from the at Elmira, the averment, assuming that the postmaster or inspector did not intend to intercept -the letters before delivery, would have conformed to the facts. But as it is averred in each count that the letter embezzled was one intended to be conveyed by mail, it was necessary to prove npon the trial that it belonged to that category of mailmatter; and, if the jury were not correctly instructed as to the meaning of the term "intended to be conveyed by mail," the exceptions of the accused were well tak'en. Upon this question the judge inRtructed the jury, in substance, that the accused waS not guilty of the offense charged in the indictment, if they found that the postmaster or inspector intended to immediately resume control of the letters before they were delivered to the Telegram Company in the usual way, provided they were not abstracted; but if it was the intention of these officers to permit them to be delivered to the pouch of the Telegram Company, by any of the employes of the office, they were letters intended to be conveyed by mail, and the fact that they were decoy letters was of no consequence. He refused to instruct the jury that the letters were not intended to be conveyed by mail because they were not mailed in the way letters are usually mailed, or were not ordinary mail-matter. Section 5467 makes it an offense on the part of any employe of the postal service to secrete, em-. bezzle, or destroy any letter coming into his possession which was (1) intended to be conveyed by mail; (2) to be carried or delivered by any employe in the postal service; or (3) to be forwarded through or delivered from an)' post-office. The statute is not to be enlarged by construetionbeyond the necessary meaning of its terms, nor interpreted to embrace a case which may or'may not be within the legislative contemplation; but it is not to be construed so strictly as'to cripple the reasonable meaning of the phraseology, and exclude offenses fairly within its lanAs is said by Mr. Sedgwick, (St. & Const.Law, 2d Ed., 282:) "The rule that statutes of this class are to be constroed strictly is far from :being a rigid. unbending one; or, rather, it has in modern times been so modIfied and explained away as to mean little more t han that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed iD the enactment; the courts refusing, on the one hand, to extend the
punishment to cases which are not clearly embraced in them. and, on the other, equally refusing, by any mere verbal nicety, forced construction, or equitable interpretation, to exonerate parties plainly within their scope,"
Letters like those in the present case, assuming that they were not to be intercepted by the postmaster before delivery to the Telegram Company, fall distinctly within the category of letters intended to be" delivered from any post-office," and satisfy that descriptive term in the section. The question is whether such letters are also within the other category of the section, and are described by the term "intended to be conveyed by maiL" If the latter descriptive term were the only one employed in the section to describe the letters which are the subject of embezzlement, the question would be less doubtful. As it is, there is certainly fair room for argument that both descriptive terms are not used to define the Same thing. Although the term "to be conveyed by mail" is hardly appropriate to describe a letter which is to be carried by hand .from one receptacle to another in the same post-office, yet its meaning is amplified by section 5468, which declares that the fact that a letter has been in any authorized depository for mail-matter, or in charge of any postmaster, or of any clerk, carrier, agent, or messenger of the postal service, shall be evidence that it was intended to be conveyed by mail. This section makes the depositing of the letter, irrespective of any other incident of transmission, the criterion whether it is intended to be conveyed by mail, and implies that a letter handed to a clerk in a post-office, for delivery at the same office to the person to whom it is addressed, may be intended to be conveyed by mail. Unless the word "deposited" has. some limited meaning, a letter handed by one clerk to another at any stage of tran·smission, for the purpose of forwarding its delivery, is intended to be conveyed by mail, within the meaning of section 5467. 5468 includes a letter deposited with any agent or messenger employed in any department of the postal service, and, in many cases whi9h are supposable, letters thus deposited would not be intrusted to such employe in the way mail-matter is commonly deposited. I conclude, therefore, that the word "deposited" is used in the sense of "intrusted," and refers to mail-matter left in any way for official transmission with an employe in the course of his employment; and that the letters intended to be conveyed by mail of section 5467 embrace all the other described classes of that section, and that the further enumeration is only another instance of the tautology which is not uncommon in legislative acts. The manifest purpose of the statute is to protect all letters confided to the care of the postal department for official transmission from embezzlement or improper appropriation by employes during the course of their transmission, and throughout the time they are in any .manner in the custody of the officers or agents of the department. It would seem to be a very unreasonable construction of the statut.e to hold a letter handed to the postmaster outside the office, and placed by hhn in a bag of outgoing mail-matter for transmission, would :tlot be within its protection. If such a letter would be the subject of the offense, clearly letters mailed,a,s these were would be also.