Section 5467 of the Revised Statutes creates two distinct
classes of offenses: the one relating to the embezzlement of
letters, etc.; the other relating to stealing their contents.
Sections 3591 and 5467 of the Revised Statutes are to be
construed together -- the offenses of secreting, embezzling or
destroying mail matter which contains articles of value being
punishable under the one, and like offenses as to mail matter which
does not contain such articles being punishable under the
other.
When there is an ambiguity in a section of the Revised Statutes,
resort may be had to the original statute from which the section
was taken, to ascertain what, if any, change of phraseology there
is, and whether such change should be construed as changing the
law.
Penal statutes, like all others, are to be fairly construed
according to the legislative intent, as expressed in the act.
The Court again declines to answer a certified question which
contains no clear and distinct proposition of law.
The case is stated in the opinion.
Page 134 U. S. 625
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The defendant, an employee in the post office at New York, was
found guilty of embezzling a letter containing an article of value
on an indictment under section 5467 of the Revised Statutes. A
hearing on motions for new trial and in arrest of judgment before
the circuit judge of the Second Circuit and the district judge,
holding the court, resulted in a division of opinion upon the
following questions, which were certified to this Court:
"1. Whether an offense against the United States under section
5467, Rev.Stat., is charged in either the first or the third count
of the indictment."
"2. Whether the embezzlement, by a person employed in a
department of the postal service, of a letter intended to be
conveyed by mail, and containing an article of value, which shall
have come into the possession of such person, is made an offense
against the United States by section 5467 of the Revised Statutes
of the United States, and whether any penalty is prescribed for
such embezzlement by said section."
Section 5467 is as follows:
"Any person employed in any department of the postal service who
shall secrete, embezzle, or destroy any letter, packet, bag, or
mail of letters entrusted to him, or which shall come into his
possession, and which was intended to be conveyed by mail, or
carried or delivered by any mail carrier, mail messenger, route
agent, letter carrier, or other person employed in any department
of the postal service, or forwarded to or delivered from any post
office or branch post office established by authority of the
Postmaster General, and which shall contain any note, bond, draft,
check, warrant, revenue stamp, postage stamp, stamped envelope,
postal card, money order, certificate of stock, or other pecuniary
obligation or security of the government, or of any officer or
fiscal agent thereof, of any description whatever; any bank note,
bank post bill, bill of exchange, or note of assignment of stock in
the funds; any letter of attorney for receiving annuities or
Page 134 U. S. 626
dividends, selling stock in the funds, or collecting the
interest thereof; any letter of credit, note, bond, warrant, draft,
bill, promissory note, covenant, contract, or agreement whatsoever
for or relating to the payment of money or the delivery of any
article of value, or the performance of any act, matter, or thing;
any receipt, release, acquittance, or discharge of or from any
debt, covenant, or demand, or any part thereof; any copy of the
record of any judgment or decree in any court of law or chancery,
or any execution which may have issued thereon; any copy of any
other record, or any other article of value, or writing
representing the same; any such person who shall steal or take any
of the things aforesaid out of any letter, packet, bag, or mail of
letters which shall have come into his possession either in the
regular course of his official duties or in any other manner
whatever, and provided the same shall not have been delivered to
the party to whom it is directed, shall be punishable by
imprisonment at hard labor for not less than one year nor more than
five years."
It is argued that no indictment can be sustained under this
section against a post office employee for secreting, embezzling,
or destroying any letter, packet, bag, or mail of letters intended
to be conveyed by mail, etc., containing any of the articles named,
or any other article of value, and that the only offense punishable
under the section is that of stealing or taking any of the things
aforesaid "out of any letter, packet, bag, or mail of letters." As
secreting, embezzling, or destroying letters, etc., containing
articles of value, are plainly grave offenses, and are described in
the section with particularity, the intention to impose a penalty
on their commission cannot reasonably be denied, and although the
apparent grammatical construction might be otherwise, the true
meaning, if clearly ascertained, ought to prevail. If there be any
ambiguity in section 5467, inasmuch as it is a section of the
Revised Statutes, which are merely a compilation of the statutes of
the United States revised, simplified, arranged, and consolidated,
resort may be had to the original statute from which this section
was taken to ascertain what, if any, change of phraseology there
is, and whether such change should be construed as
Page 134 U. S. 627
changing the law.
United States v. Bowen, 100 U.
S. 508,
100 U. S. 513;
United States v. Hirsch, 100 U. S. 33;
Myer v. Car Co., 102 U. S. 1,
102 U. S. 11. And
it is said that this is especially so where the act authorizing the
revision directs marginal references, as is the case here. 19 Stat.
c. 82, § 2, p. 268; Endlich on Int. Stat. § 51. Accordingly, we
find that this section took the place of section 279 of the Act of
June 8, 1872, 17 Stat. 318, which reads as follows:
"That any person employed in any department of the postal
service who shall secrete, embezzle, or destroy any letter, packet,
bag, or mail of letters entrusted to him, or which shall come into
his possession, and which was intended to be conveyed by mail, or
carried or delivered by any mail carrier, mail messenger, route
agent, letter carrier, or other person employed in any department
of the postal service, or forwarded through or delivered from any
post office or branch post office established by authority of the
Postmaster General, and which shall contain any note, bond, draft,
check, warrant, revenue stamp, postage stamp, stamped envelope,
postal card, money order, certificate of stock, or other pecuniary
obligation or security of the government, or of an officer or
fiscal agent thereof, of any description whatever; any banknote,
bank post bill, bill of exchange, or note of assignment of stock in
the funds; any letter of attorney for receiving annuities or
dividends, selling stock in the funds, or collecting the interest
thereof; any letter of credit, note, bond, warrant, draft, bill,
promissory note, covenant, contract, or agreement whatsoever for or
relating to the payment of money, or the delivery of any article of
value, or the performance of any act, matter, or thing; any
receipt, release, acquittance, or discharge of or from any debt,
covenant, or demand, or any part thereof; any copy of the record of
any judgment or decree in any court of law or chancery, or any
execution which may have issued thereon; any copy of any other
record, or any other article of value, or writing representing the
same; any such person who shall steal or take any of the things
aforesaid out of any letter, packet, bag, or mail of letters which
shall have come into his possession, either in the regular course
of his official duties, or
Page 134 U. S. 628
in any other manner whatever, and provided the same shall not
have been delivered to the party to whom it is directed, every such
person shall, on conviction thereof, for every such offense, be
imprisoned at hard labor not less than one nor more than five
years."
The words at the close of the section, "every such person shall,
on conviction thereof, for every such offense, be imprisoned," are
omitted in the revised section, and the question is whether that
change works the change in the law contended for. It will be
perceived that if the word "or" or the word "and" were supplied
before the words "any such person who shall steal," etc., as having
been omitted by way of ellipsis, a course often pursued, the
objection would have nothing to rest on. But we do not think the
supplying of any word is necessary. If the comma after the word
"directed," in the third line from the close of the section as it
appears in the Revised Statutes, be treated as a semicolon, the
result is the same, and obviates any uncertainty in the matter. For
the purpose of arriving at the true meaning of a statute, courts
read with such stops as are manifestly required.
Hammock v.
Loan and Trust Co., 105 U. S. 77,
105 U. S. 84;
United States v.
Isham, 17 Wall. 496.
As contended on behalf of the defendant, there can be no
constructive offenses, and, before a man can be punished, his case
must be plainly and unmistakably within the statute. But, though
penal laws are to be construed strictly, yet the intention of the
legislature must govern in the construction of penal as well as
other statutes, and they are not to be construed so strictly as to
defeat the obvious intention of the legislature.
United
States v. Wiltberger, 5 Wheat. 76;
United
States v. Morris, 14 Pet. 464;
Am. Fur
Co. v. United States, 2 Pet. 358,
27 U. S.
367.
"It appears to me," said Mr. Justice Story in
United States
v. Winn, 3 Sumner 209, 211,
"that the proper course in all these cases is to search out and
follow the true intent of the legislature and to adopt that sense
of the words which harmonizes best with the context and promotes in
the fullest manner the apparent policy and objects of the
legislature. "
Page 134 U. S. 629
To the same effect is the statement of Mr. Sedgwick in his work
on Statutory and Constitutional Law, 2d ed. 282:
"The rule that statutes of this class are to be construed
strictly is far from being a rigid or unbending one, or, rather, it
has in modern times been so modified and explained away as to mean
little more than that penal provisions, like all others, are to be
fairly construed according to the legislative intent as expressed
in 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."
This passage is quoted by Baron Bramwell in
Attorney General
v. Sillem, 2 H. & C. 532, as one
"in which good sense, force and propriety of language are
equally conspicuous, and which is amply borne out by the
authorities, English and American, which he cites."
Foley v. Fletcher, 28 L.J. (N.S.) 106;
Nicholson v.
Fields, 31 L.J. (N.S.) 233; Hardcastle on Statutory Law
251.
And the reason for the less rigorous application of the rule is
well given in Maxwell on the Interpretation of Statutes, 2d ed.,
318, thus:
"The rule which requires that penal and some other statutes
shall be construed strictly was more rigorously applied in former
times, when the number of capital offenses was one hundred and
sixty or more; when it was still punishable with death to cut down
a cherry tree in an orchard or to be seen for a month in the
company of gypsies. But it has lost much of its force and
importance in recent times, since it has become more and more
generally recognized that the paramount duty of the judicial
interpreter is to put upon the language of the legislature,
honestly and faithfully, its plain and rational meaning, and to
promote its object. It was founded, however, on the tenderness of
the law for the rights of individuals, and on the sound principle
that it is for the legislature, not the court, to define a crime
and ordain its punishment."
We entertain no doubt that two classes of offenses were intended
to be created by section 5467 -- one relating to the
Page 134 U. S. 630
embezzlement of letters, etc., and the other to stealing the
contents -- and that this conclusion is not reached in violation of
any rule of construction applicable to penal statutes.
But it is said that the offense of embezzling a letter is
covered by section 3891 of the Revised Statutes, and that of
abstracting its valuable contents by section 5467, and hence the
latter was intended to be confined to stealing the contents, and
should not be held to embrace secreting, embezzling, or destroying
the letter, which might contain nothing of value.
Section 3891 is as follow:
"Any person employed in any department of the postal service who
shall unlawfully detain, delay, or open any letter, packet, bag, or
mail of letters entrusted to him, or which has come into his
possession, and which was intended to be conveyed by mail, or
carried or delivered by any mail carrier, mail messenger, route
agent, letter carrier, or other person employed in any department
of the postal service, or forwarded through or delivered from any
post office or branch post office established by authority of the
Postmaster General, or who shall secrete, embezzle, or destroy any
such letter, packet, bag, or mail of letters, although it does not
contain any security for or assurance relating to money or other
thing of value, shall be punishable by a fine of not more than five
hundred dollars or by imprisonment for not more than one year or by
both."
This section is based on section 146 of the Act of June 8, 1872,
17 Stat. 302, which reads thus:
"That any person employed in any department of the postal
service who shall unlawfully detain, delay, or open any letter,
packet, bag, or mail of letters in trusted to him, or which shall
have come into his possession, and which was intended to be
conveyed by mail, or carried or delivered by any mail carrier, mail
messenger, route agent, letter carrier, or other person employed in
any department of the postal service, or forwarded through or
delivered from any post office or branch post office established by
authority of the Postmaster General; any such person who shall
secrete, embezzle, or destroy any such letter, packet, bag, or mail
of letters, as aforesaid, which
Page 134 U. S. 631
shall not contain any security for or assurance relating to
money or other thing of value, every such person shall, on
conviction thereof, for every such offense, forfeit and pay a
penalty of not exceeding five hundred dollars, or be imprisoned not
more than one year, or both at the discretion of the court."
The contention is that the embezzlement of a letter is
punishable only under section 3891, whether it does or does not
contain a thing of value; that if it does the offender is not
liable under section 5467, unless he steals it, and that this is a
reasonable and just construction, as the letter may have been taken
without intention to abstract the article, and indeed without
suspicion of the contents until the interior is explored. And it is
urged that, as section 146 of the Act of June 8, 1872, expressly
provided a penalty for the embezzlement of a letter "which shall
not contain" anything of value, and its substitute, section 3891,
uses the language, "although it does not contain" anything of
value, the latter section has been thereby broadened so as to
punish the offense, whether the letter contains an article of value
or not. This view would require us to hold that the intention was
to do away with the long observed distinction between embezzling
letters containing valuable matter and those which do not, and to
absolve the culprit from liability for all the consequences of his
unlawful act, notwithstanding the offenses of secreting,
embezzling, or destroying letters of the first class are carefully
defined. If section 3891 covers the embezzlement of all letters and
mail matter, no reason for the larger part of section 5467 can be
perceived. The construction contended for is inadmissible.
We concur with counsel for the government that, as sections 146
and 279 of the Act of June 8, 1872, are to be considered together,
so are sections 3891 and 5467, and that the offenses of secreting,
embezzling, or destroying mail matter not containing articles of
value are punishable under the one, and containing such articles
under the other. We are unable to find any sound reason for the
conclusion that Congress intended to substitute for "imprisonment
at hard labor for
Page 134 U. S. 632
not less than one year nor more than five years" the penalty
denounced by section 279, and carried into section 5467, in respect
to the embezzlement of mail matter containing articles of value, "a
fine of not more than five hundred dollars, or by imprisonment for
not more than one year, or by both," the punishment for embezzling
mail matter not containing such articles.
Similar views as to section 5467 were expressed by Judge
Benedict in
United States v. Pelletreau, 14 Blatchford
126, and
United States v. Jenther, 13 Blatchford 335, and
by Judge Brewer, as to section 5469, in
United States v.
Falkenhainer, 21 F. 624.
Contra, United States v.
Long, 10 F. 879.
The first question certified is in a form frequently disapproved
of.
Dublin Township v. Milford Savings Institution,
128 U. S. 510,
128 U. S. 514;
United States v. Northway, 120 U.
S. 327;
United States v. Hall, 131 U. S.
50. The second question is answered in the affirmative,
and it will be
So certified.