Faust v. United States
163 U.S. 452 (1896)

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U.S. Supreme Court

Faust v. United States, 163 U.S. 452 (1896)

Faust v. United States

No. 687

Submitted January 9, 1896

Decided May 26, 1896

163 U.S. 452

Syllabus

The defendant's name need not be correctly spelled in an indictment, if substantially the same sound is preserved.

On the trial under an indictment against an assistant postmaster for embezzling money order funds of the United States, it being proved that he was the son and assistant of the principal postmaster, and as such had the sole management and possession of the money order business and money order funds during the entire term, a certified transcript from the office of the Auditor of the Treasury at Washington showing the account of the postmaster is admissible in evidence.

It was no error on such trial to refuse to admit evidence tending to show that another person than the defendant at a time anterior to the time of the commission of the offence charged, had committed another and

Page 163 U. S. 453

different offence than the one herein charged, and that said other person had been indicted and convicted thereof.

It was within the discretion of the court below to permit a witness who had been examined and cross-examined to be recalled in order to make some change in the statements made by him on cross-examination.

The objection that the charge as a whole was misleading is without merit.

The sixth assignment is based on the refusal of the court to charge the jury that the embezzlement must be proved to have taken place without the consent of the defendant's principal or employer. It was claimed that, as the indictment failed to charge that the defendant embezzled any money without the consent of his principal or employer, and as the postmaster employed the defendant, the defendant's responsibility was to the postmaster, and not to the government. Held that it had no merit.

The remaining assignments are without merit.

In the District Court of the United States for the the Northern District of Texas, the defendant, plaintiff in error, was indicted December 21, 1893, and subsequently tried for feloniously embezzling certain money order funds of the United States. On April 18, 1895, he was found guilty under the second count of the indictment, which alleged that on April 6, 1893, he was assistant postmaster at Thornton, in the County of Limestone, within the district aforesaid, and as such assistant postmaster had in his possession and control money order funds to the amount of $400, and did unlawfully and feloniously embezzle and convert the same to his own use. He was sentenced to imprisonment in the penitentiary, and thereupon he applied for and obtained a writ of error from this Court.

On the trial, the defendant entered a plea of misnomer, as follows:

"And now comes W. J. Foust in his proper person, who is indicted by the name of W. J. Faust, and having heard the said indictment read, says that he was baptized in the name of W. J. Foust, and by that name always since his baptism hereto has been called and known, and by no other name has he ever been known or called, and this he, the said W. J. Foust, is ready to verify. Wherefore he prays judgment of the said indictment, and that the same may be quashed."

The court overruled this plea, and the defendant took an exception. At the suggestion of the attorney for the United

Page 163 U. S. 454

States, the defendant was requested to suggest his true and proper name in order that it might be inserted in the indictment and entered on the docket. This the defendant declined to do.

Exceptions were also taken by the defendant to the rejection of certain evidence offered on his behalf, and to the admission of certain evidence introduced by the government, and to the court's refusal to charge the jury as the defendant requested, and to certain portions of the charge which were given.

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