UNITED .' STATES 11. DENICKE.
407
ervation as brings them within the meaning of the terms "Indian country." The lands are not reserved "for the purposes of Indian reservations." The government retains possession of them for the purpose of selling them, as directed by law. If these lands do not constitute an Indian reservation, they are certainly not an "Indian country." They are held by the United States for sale. And even if this were not the case, the residence of 200 Indians on a tract 40 square miles in area would not make the whole tract "Indian country" within the meaning and intention of the law. Libel of information is dismissed,
UNITED STATES 17. (Oircuit Court, 8. D. G«YI'gla,
DENICKE.
w: D.
May, 1888.)
t.
POST-OJtFJCE-OFFENSES AGAINST POSTAL LAWs-LARCENY FROV MAILS-IIJllCOY LBTTER.
A letter with a fictitious address, which therefore cannot be delivered, is not "intended to be conveyed by mail, II within the meaning of the statute.
'J. SUJll-,-INDIOTMEN'l'-VARIANCE.
the indictment charges that a letter alleged to be embezzled was di·. recte'd to the treasurer of the Travellers' Insurance Company, and the proof shows it was directed to the Traders' Insurance Company, the variance is fatal. The practice of post-office inspectors, of stripping naked and searching the accused, without a warrant, commented on.
8.
SAJ,rn-BBARCHING ACCUSED.
(8111labw by the Oourt.)
United States against Rudolph Denicke. Indictment for embezzling a letter intended to be conveyed by mail. Dupont Guerry, U. S. Atty., for the Government. Dessau Bartlett, for defendant. SPEER, J. The question arises in the following manner: The indictment charged that the defendant, Rudolph Denicke, postal-route agent, in the employ of the post-office department, embezzled a letter addressed ro the Travellers' Insurance Company of Pittsburgh. On the trial, the prosecution TJroved that a letter written to the Traders' Insurance Company ofPittsburgh was mailed at Gordon by Chambers, the assistant postmaster there, under the direction of Hancock. postal inspector. It contained a five-dollar bill. Chambers testified that he had no dealings with the Traders' or the Travellers' Insurance Company of Pittsburgh; that he did not wish the accident insurance policy for which the letter asked, and, 80 far as he knew, no such insurance compacy was in existence; and the district attorney thereupon admitted that the letter was written , to a fictitious address. It was also in proofthat the post-office inspector, Hancock,promised Chambers to intercept the letter in the mail; to use .the L:tnguageof the witness, ffto capture" it, and return Chambers his
:408
FEDERAL REPORTER ·
.money.' At'lhis point the letter wlits6fl'eredin evidence, and; it appear. ingthatJt was described in the indictment as being dir{)cted to the Trav· ellers' Insurancl3 Company,and the letter itself being written to the Traders' insurance Company, the defendant's counsel objected toits in· troductioriouthe grounds (1) that by the proof it waS not a letter in. tend.ed to be e.onveyed by mail, within the meaning ofthe statute; and ,(2) that there was such a fatal variance in the allegations and tne proof that it must be necessarily excluded. In the humanity of the law it is settled that a party charged with cMme is presumed to be innocent until the crime is proven against him, as charged. All the substantial allegations of the prosecution must be proven as laid. This is not only elementary law, but it is wise in prin. ciple and in its results to the fairness and impartiality of criminal pro. cedure. Not only must the statute, said to have been violated, be shown to have been broken, but the crime described, must be proven as described. Among other reasons for this 'doctrine are these: A per. son accused is entitled to have full and accurate notice of the charge 'against him, in order that he may know how to make his ,.cfense. it is. essential in the administration of justice in Ilrder to prevent two prosecutions for one and the same tranSAction. The defendant is charged with a violation of this law as found ill secdon :l8\:l1 of the Revised Stat"utes'; ',i Any person employed in any departmtHl vi the postal service, who . shall * . embezzle auy letterintrusted to him, or which has come into his possesEion, and which was intended to be com'eyed by mail, shall bepunished * * *." Now, it is charged that the defendant, a person eniployed in the department of the postal s£::rvice, embezzled a letter in. trusted to him, and directed to the treasurer of the Travellers' Insurance Company of Pittsburgh, Pa., and which was intended to be conveyed by mail. Does the proal upon, which the government relies, sustain these allegations? Was this letter, in contemplation of the law. a letter "intended to be conveyed'by mail?" It is conceded that it is directed to a corporation not in existence; that the address is fictitibus; that it was not desired by either ofthe parties who were concerned in the sending of this ·lettel"thafit t>hould be conveyed to the address specified in the'indictment· .It is also conceded that it was a decoy letter; that it was the purpose of the inspectors to intercept, or, to use the words of the witness, to "capture" it somewhere on its route, provided it passed the hands of the suspected party;ii it did not pass his hands it was their purpose to capture it in his possession. It was not intended to be conveyed to the Travellers' Insurance Company , or to the Traders' Insurance Company; and it 'seems to corneinost clearly w: thin the decision of Judge NEUMAN in the . case of U. S.v. Rnpp, 30 Fed. Rep. 818. In that case a "nixe"-that is, ,aletter addressed to a fictitious person, or to a place where there WRSnO, in what is known as the "nixe basket, " a, recep· ta'clefor unmailable matter. This was to be forwarded to the dead-let,ter office. . This was held by the court not to be mail matter within CIe· meaning of sections 5467, 5469, of the Revised Statutes. It was held . distinctlynot-to be matter intended to be conveyed-by mailj and J lldge·