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.
(3.) Or, by fraud or deception, obtained from any person having custody thereof any such 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 any one 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 defence is too well settled by the modern authorities to be now open to contention. King v. Egginton, 2 Bos. & Pull. 508; United States v. Foye, 1 Curtis, 364; United States v. Cottingham, 2 Blatchford, 470; Bates v. United States, 10 Fed. Rep. 92, 97; United States v. Whittier, 5 Dillon, 35, 39; United States v. Moore, 19 Fed. Rep. 39; United States v. Wight, 38 Fed. Rep. 106; United States v. Matthews, 35 Fed. Rep. 890, 896; United States v. Dorsey, 40 Fed. Rep. 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 defence 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
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 being cited, Pollock, Chief Baron, 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 Fed. Rep. 106; United States v. Dorsey, 40 Fed. Rep. 752; United States v. Bethen, 44 Fed. Rep. 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 employes, since, in a large majority of cases, the letters and their envelopes are thrown away or
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 employé 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 in tended to be conveyed by mail or carrier. Indeed, it is some what doubtful whether it could be material at all in view of
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 Goode'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
The judgment of the court below is, therefore,