When a verdict is general upon all the counts in an indictment
sufficient in form, it must stand if anyone of the counts was
sustained by competent testimony.
In an indictment under Rev.Stat. § 5467, against a letter
carrier charged with secreting, embezzling, or destroying a letter
containing postage stamps, the fact that the letter was a decoy is
no defense.
A letter addressed to a fictitious person, known to be such, is
a letter within the meaning of the statute, and for the purposes of
Rev.Stat. §§ 5467 and 5469, a letter which bears the outward
semblance of a genuine communication, and comes into the possession
of the employee in the
Page 159 U. S. 664
regular course of his official business is a writing or document
within the meaning of the statute.
Where a general verdict of guilty is rendered, an objection
taken to evidence admissible under one or a part of the counts is
untenable.
The term "branch post office," as employed in those sections,
includes every place within such office where letters are kept in
the regular course of business for reception, stamping, assorting,
or delivery.
It being shown in this case that the branch post office in which
the offence was alleged to have been committed was known as the
Roxbury station of the Boston post office, that it had been used as
such for years, and that it was a post office
de facto, it
was unnecessary to show that it had been regularly established as
such by law.
George Goode, a letter carrier, was indicted and convicted in
the District Court for the district of Massachusetts for
embezzlement and theft from the mail. The indictment contained
seven counts, the first three of which charged a violation of
Rev.Stat. § 5467, and the last four a violation of § 5469. The
substance of these sections is printed in the margin.
* The case was
submitted to the jury under certain instructions, hereafter to be
considered, who returned a verdict of guilty upon the whole
indictment.
The facts of the case were substantially as follows:
Goode, the plaintiff in error, was a letter carrier employed in
the branch post office at Roxbury, which had formerly been an
independent post office, but is now known as the "Roxbury Station"
of the Boston post office. Complaints having been
Page 159 U. S. 665
made of thefts from the mails at this office, Thomas J. Boynton,
a post office inspector, prepared two decoy letters, one of which
was addressed to Whitcomb, Keyes & Co., a firm of merchant
tailors on Washington Street, in the Roxbury district, and was
subsequently delivered to them in the regular course of business,
and one addressed to John Muldoon, Esq., 153 Ziegler Street,
Boston, Massachusetts, and postmarked West Cheshire,
Connecticut.
Boynton in fact took an envelope containing that postmark,
filled in the date, which was missing on the postmark, with type
which he had in his office for that purpose, and cancelled the
stamp with a canceler such as was used ordinarily in the smaller
post offices. He enclosed in the letter two one-dollar silver
certificates and five two-cent postage stamps, marked the postage
stamps by means of pin holes, and gave the letter to one McGrath,
who was assistant superintendent of the mailing division of the
main post office in Boston, but who was stationed temporarily, by
direction of the postmaster at the Roxbury office.
McGrath, when the letter carriers were out, called as witness
the superintendent and person having charge of the branch post
office, and in his presence put the letter into defendant's,
Goode's, box. This was not the ordinary method of depositing the
mail. Indeed, he passed by the places on the outside as well as the
inside of the post office where letters are usually mailed, and
went into the back room, where the letters, after
Page 159 U. S. 666
passing through the mails, are sorted. Goods returned from his
route, took up all the letters in his box, and went to his desk,
which was situated in the same room. His own route terminated at
No. 51 Ziegler Street, and it was his duty to put this Ziegler
Street letter into the box of the carrier whose route included the
higher numbers of Ziegler Street, or to put it into what was known
as the "list box." This list box was kept for the reception of any
letter known as a "beat" or a "nixie;" that is, a letter addressed
to a person not to be found in the district. On Goode's return from
his route, the letter not being found in either of these boxes or
elsewhere, he was searched, and the five marked postage stamps were
found upon his person. It was shown that while absent on his route,
he had the opportunity of disposing of the letter and the silver
certificates therein contained. There were a large number of other
letters in the box in which this Muldoon letter was put by McGrath.
McGrath knew at the time that there was no such place as 153
Ziegler Street, and that there was no such person as John Muldoon.
He put the letter in the box for the purpose of being able to
identify its contents in case Goode embezzled them.
Goode was sentenced, upon conviction, to imprisonment at hard
labor for three years, and thereupon sued out this writ of
error.
Page 159 U. S. 668
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
To make a case under Rev.Stat. § 5467, it is necessary for the
government to prove:
(1) That the person charged was employed in the postal
service.
(2) That the letter that he is charged with secreting,
embezzling, or destroying was entrusted to him or came into his
possession, and was intended to be conveyed by mail, carried, or
delivered by carrier, messenger, route agent, or other person
employed in the postal service, or forwarded through or delivered
from any post office or branch office, etc.
(3) That it contained one of the articles of value described in
the statute, one of which is postage stamps.
(4) Or that the person so employed stole one of such articles
out of any such letter, etc., provided the same had not been
delivered to the party to whom it was directed.
Upon the other hand, § 5469 applies to every person,
irrespective of his employment in the post office, and to establish
a case under this section it is only necessary to prove:
(1) That the defendant stole the mail, or that he took from out
of the mail or post office or other authorized depository a letter
or packet, or took such mail or letter or packet therefrom, or from
any post office, etc., or otherwise authorized depository, with or
without the consent of the person having the custody thereof.
Page 159 U. S. 669
(2) That he opened, embezzled, or destroyed any such mail,
letter, or packet containing an article of value.
(3) Or, by fraud or deception, obtained from any person having
custody thereof any much mail, letter, or packet, containing such
article of value.
As the verdict was general upon all the counts, which are
conceded to be sufficient in form if anyone of the counts was
sustained by competent testimony, the verdict must stand.
Claassen v. United States, 142 U.
S. 140;
Evans v. United States, 153 U.
S. 584.
1. The main contention of the defendant is that the Muldoon
letter was not a letter in point of fact, inasmuch as it was not
only a decoy -- that is, not written in good faith as a message or
communication to the person addressed -- but was wholly fictitious;
that there was no such person as John Muldoon, no such place as 153
Ziegler Street, and the letter could not possibly have been
delivered.
That the fact that the letter was a decoy is no defense is too
well settled by the modern authorities to be now open to
contention.
King v. Eggington, 2 Bos. & Pull. 508;
United States v. Foye, 1 Curtis 364;
United States v.
Cottingham, 2 Blatchford 470;
Bates v. United States,
10 F. 97;
United States v. Whittier, 5 Dillon 35, 39;
United States v. Moore, 19 F. 39;
United States v.
Wight, 38 F. 106;
United States v. Matthews, 35 F.
890, 896;
United States v. Dorsey, 40 F. 752. Indeed, this
Court held at the last term, in
Grimm v. United States,
156 U. S. 604,
that the fact that certain prohibited pictures and prints were
drawn out of the defendant by a decoy letter written by a
government detective was no defense to an indictment for mailing
such prohibited publications.
The question whether a letter addressed to a fictitious person
known to be such is a "letter" within the meaning of the statute is
more serious, and there are certainly authorities which lend
support to the theory of the defendant in that regard. Thus, in
Regina v. Rathbone, 1 Car. & M. 220, a detective
mailed a decoy letter containing a marked sovereign to a fictitious
address in London, and placed it in a heap of
Page 159 U. S. 670
letters which the prisoner was about to sort, and which he had
to deliver that day. The letter was not delivered, and, in the
course of the same day, the prisoner was arrested and searched, and
the marked sovereign found in his pocket. It was held that this was
not a "post letter," or a letter put into the post; but, as there
was a separate count for the larceny of the sovereign, he was held
to have been properly convicted of that. A similar ruling was made
in
Regina v. Garder, 1 Car. & K, 628, wherein the
prisoner was held to have been properly convicted of the larceny of
certain marked money contained in a letter, which was addressed to
a fictitious person, the court adhering to its previous ruling that
it was not the stealing of a post letter.
The authority of these cases, however, was seriously shaken by
that of
Regina v. Young, 1 Den.Cr.Cas. 194. In that case,
the letter contained a half sovereign and was addressed to a
fictitious person. The prisoner, instead of transmitting the letter
to the general post office, abstracted it from the receiving box,
opened it, took out the half sovereign, and kept both the letter
and the money. It was held to be a post letter, having all the
ingredients under the statute, and "whether it can be delivered or
no seems beside the question." On the
Gardner case's being
cited, Pollock, C.B., said he had seen reason to think his dictum
in that case was incorrect, and the judges were unanimously of the
opinion that the conviction was right.
The question has been generally ruled in the same way in this
country.
United States v. Foye, 1 Curtis 364;
United
States v Wight, 38 F. 106;
United States v. Dorsey,
40 F. 752;
United States v. Bethea, 44 F. 802.
If the word "letter" were given the technical construction of a
written message or communication from one person to another, it
would strike at the whole system of decoy or test letters, none of
which contain
bona fide communications. This would render
it practically impossible to detect thefts and embezzlements by
employees, since in a large majority of cases the letters and their
envelopes are thrown away or
Page 159 U. S. 671
destroyed for the very purpose of preventing their being
identified in case the employee is arrested, and the contents of
the letter, which it is ordinarily impossible to identify, only are
abstracted. If, however, the contents can be identified, as they
always are in test letters, by a private mark put upon them, the
discovery of such contents upon the person of the employee affords
almost conclusive evidence of the theft of the letter in which they
are enclosed.
It makes no difference with respect to the duty of the carrier
whether the letter be genuine or a decoy with a fictitious address.
Coming into his possession as such carrier, it is his duty to treat
it for what it appears to be on its face -- a genuine
communication; to make an effort to deliver it; or, if the address
be not upon his route, to hand it to the proper carrier or put it
into the list box. Certainly he has no more right to appropriate it
to himself than he would have if it were a genuine letter. For the
purposes of these sections, a letter is a writing or document which
bears the outward semblance of a genuine communication and comes
into the possession of the employee in the regular course of his
official business. His duties in respect to it are not relaxed by
the fact or by his knowledge that it is not what it purports to be
-- in other words, it is not for him to judge of its
genuineness.
2. The question whether this letter "was intended to be conveyed
by mail, or carried or delivered by any mail carrier, mail
messenger, route agent, letter carrier, or other person," etc.,
does not properly arise at this stage of the case, since, under §
5469, it is only necessary to show that the article embezzled or
taken was a letter or packet properly deposited, etc.; the
subsequent limitation of the prior section with respect to the
intention of the party mailing the letter being omitted here.
Whether the court erred in refusing the defendant's request in that
particular therefore becomes immaterial in view of the last four
counts, which are drawn under § 5469 and contain no allegation that
the letter in question was intended to be conveyed by mail or
carrier. Indeed, it is somewhat doubtful whether it could be
material at all in view of
Page 159 U. S. 672
§5468, declaring that the fact that any letter, etc., has been
deposited in any post office or branch post office, or in charge of
any agent of the postal service, shall be evidence that the same
was "intended to be conveyed by mail" within the meaning of § 5467.
Had defendant been convicted under the first three counts and
acquitted under the last four, of course, the objection might be
material; but where a general verdict of guilty is rendered, an
objection taken to evidence admissible under one or a part of the
counts is untenable.
3. Was there competent evidence to show that the letter was
deposited in any mail or post office, branch post office, or other
authorized depository for mail matter, within the meaning of §
5469? If, to meet the requirements of this section, it were
necessary to show that the letter was deposited in one of the
ordinary boxes accessible to the public, and used for the reception
of letters regularly mailed, the evidence is obviously
insufficient, since it is shown that McGrath, in mailing this
letter, passed by the place where letters were usually mailed,
entered the back room of the office, where letters were sorted, and
put this letter into Good's box. This was clearly sufficient to
charge Goode with the duty of delivering, or attempting to deliver,
the letter, and it makes no difference that before it was put into
this box, it did not go through the usual channel or reach it in
the ordinary way. The term "branch post office," within the meaning
of the act, includes every place within such office where letters
are kept in the regular course of business for reception, stamping,
assorting, or delivery. Of course, a letter thrown upon the floor
or laid upon a desk appropriated to other and different purposes
could not be said to have been deposited in the post office, but if
it be put in any place where letters are usually kept or deposited
for any purpose, we think it is within the act.
4. While there was no direct evidence that this branch post
office was established by authority of the Postmaster General,
there was evidence that it was known as the "Roxbury Station" of
the Boston post office, had been used as such for years, and that
it was a post office
de facto. For the purposes of this
case, it was quite unnecessary to show that it had been
regularly
Page 159 U. S. 673
established as such by law.
Ingraham v. United States,
155 U. S. 434;
Wright v. United States, 158 U. S. 232.
The judgment of the court below is therefore
Affirmed.
*
"SEC. 5467. Any person employed in any department of the postal
service who shall secrete, embezzle, or destroy any letter . . .
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 . . . postage stamp . . . or other
pecuniary obligation or security of the government, . . . any such
person who shall steal or take any of the things aforesaid out of
any letter, . . . which shall have come in 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."
"SEC. 5469. Any person who shall steal the mail or steal or take
from or out of any mail or post office, branch post office, or
other authorized depository for mail matter any letter or packet;
any person who shall take the mail, or any letter or packet
therefrom, or from any post office, branch post office, or other
authorized depository for mail matter, with or without the consent
of the person having custody thereof, and open, embezzle, or
destroy any such mail, letter, or package which shall contain any .
. . postage stamp . . . or other pecuniary obligation or security
of the government; . . . any person who shall, by fraud or
deception, obtain, from any person having custody thereof, any such
mail, letter, or packet containing any such article of value shall,
although not employed by the postal service, be punishable by
imprisonment at hard labor for not less than one year and not more
than five years."
