The defendant was indicted upon the twenty-fourth section of the
Act of Congress of 3 March, 1825, entitled "An act to reduce into
one the several acts establishing and regulating the Post Office
Department," for advising, procuring, and assisting one Joseph I.
Stranghan, a mail carrier, to rob the mail, and was found guilty.
Upon this finding, the judges of the Circuit Court of North
Carolina were divided in opinion on the question whether an
indictment founded on the statute for advising, &c., a mail
carrier to rob the mail ought to set forth or aver that the said
carrier did in fact commit the offense of robbing the mail. By the
Court:
"The answer to this, as an abstract proposition, must be in the
affirmative. But if the question intended to be put is whether
there must be a distinct substantive averment of that fact, it is
not necessary. The indictment in this case sufficiently sets out
that the offense had been committed by the mail carrier."
The offense charged in this indictment is a misdemeanor where
all are principals, and the doctrine applicable to principal and
accessory in cases of felony does not apply. This offense, however,
charged against the defendant is secondary in its character, and
there can be no doubt that it must sufficiently appeal upon the
indictment that the offense alleged the chief actor had been
committed.
The defendant was indicted at the term of November, 1832, of the
circuit court for an offense against the post office laws, passed
on 2 March 1824, entitled, "an act to reduce into one act the
several acts establishing and regulating the post office
department."
The indictment contained two counts. The first count charged,
that the defendant did, "at Fayetteville, on 1 June, 1832, procure,
advise and assist Joseph I. Straughan to secrete, embezzle, and
destroy a mail of letters with which the said Joseph I. Straughan
was entrusted and which had come to his possession and was intended
to be conveyed by post from Pittsborough, in the district
aforesaid, to Fayetteville, also in said district, containing bank
notes, the said Joseph I. Straughan being, at the time of such
procuring, advising, and assisting, then and there, a person
employed in
Page 32 U. S. 139
one of the departments of the post office establishment, to-wit,
a carrier of the mail of the United States from Pittsborough
aforesaid, to Fayetteville aforesaid, contrary to the form of the
act of Congress," &c.
The second count was in the following words:
"That the defendant did procure, advise and assist Joseph I.
Straughan to secrete, embezzle and destroy a letter addressed by
Joseph Small to Joseph Baker, with which the said Joseph I.
Straughan was entrusted and which came to his possession and was
intended to be conveyed by post from Pittsborough, in the district
aforesaid, to Fayetteville aforesaid, containing sundry bank notes,
amounting, in the whole, to sixty dollars, of a denomination to the
jurors aforesaid unknown, and of the issue of a bank to the said
jurors also unknown, the said Joseph I. Straughan being, at the
time of such procuring, advising and assisting, then and there, a
person employed in one of the departments of the post office
establishment, to-wit, a carrier of the mail of the United States
from Pittsborough aforesaid, to Fayetteville aforesaid, contrary to
the form of the act of Congress,"
&c.
The jury found the defendant guilty on both counts, and a motion
was made in arrest of judgment on the following grounds:
1. That the indictment doth not aver charge or in any manner
show that the said Joseph I. Straughan did commit the offense which
this defendant is alleged to have procured and advised and assisted
him to commit.
2. That the said indictment is in other respects uncertain,
insufficient, informal and defective, and will in no sort warrant
any judgment upon the said verdict.
Upon this motion, the following certificate of division was
given:
"The defendant was indicted upon the 24th section of the Act of
Congress approved 2 March, 1825, entitled 'An act to reduce into
one the several acts establishing and regulating the Post Office
Department,' for advising, procuring and assisting one Joseph I.
Straughan, mail carrier, to rob the mail, and being found guilty,
submitted a motion in arrest of judgment, one reason in support of
which motion
Page 32 U. S. 140
was that the indictment did not sufficiently show any offense
against the said act, because the same did not directly charge or
otherwise aver that the said Joseph I. Straughan did actually rob
the mail, and, upon argument, the judges were opposed in opinion
upon this question, to-wit, whether an indictment grounded upon the
said statute, for advising, &c., a mail carrier to rob the
mail, ought to set forth or aver that the said carrier did in fact
commit the offense of robbing the mail, and therefore the judges
directed the same to be certified to the Supreme Court."
THOMPSON, JUSTICE, delivered the opinion of the Court.
The defendant was indicted in the Circuit Court of the United
States for the District of North Carolina under the 24th section of
the act of 1825, entitled "An act to reduce
Page 32 U. S. 141
into one the several acts establishing and regulating the Post
Office Department," 4 Stat. 109, which declares
"That every person who, from and after the passing of this act,
shall procure and advise or assist in the doing or perpetration of
any of the acts or crimes by this act forbidden, shall be subject
to the same penalties and punishments as the persons are subject
to, who shall actually do or perpetrate any of the said acts or
crimes, according to the provisions of this act."
Upon the trial, the defendant was convicted of the offense
charged in the indictment, and a motion was made in arrest of
judgment, upon which motion the judges were opposed in opinion, and
the case comes here upon the following certificate:
"The defendant was indicted upon the 24th section of the act of
Congress, approved 3 March, 1825, entitled 'an act to reduce into
one the several acts establishing and regulating the post office
department,' for advising, procuring and assisting one Joseph I.
Straughan, mail carrier, to rob the mail, and being found guilty,
submitted a motion arrest of judgment, one reason in support of
which motion was that the indictment did not sufficiently show any
offense against the said act because the same did not directly
charge or otherwise aver that the said Joseph I. Straughan did
actually rob the mail, and upon argument, the judges were opposed
in opinion upon this question, to-wit, whether an indictment
grounded upon the said statute, for advising, &c., a mail
carrier to rob the mail, ought to set forth or aver that the said
carrier did in fact commit the offense of robbing the mail, and
therefore the judges directed the same to be certified to the
supreme court."
The offense charged in this indictment is a misdemeanor, where
all are principals, and the doctrine applicable to principal and
accessory in cases of felony does not apply. The offense, however,
charged against the defendant is secondary in its character, and
there can be no doubt that it must sufficiently appear upon the
indictment that the offense alleged against the chief actor had in
fact been committed.
The first count in the indictment alleges that the defendant
did, at the time and place therein mentioned, procure, advise and
assist Joseph I. Straughan to secrete, embezzle and destroy a
letter with which he, the said Joseph I. Straughan,
Page 32 U. S. 142
was entrusted, and which had come to his possession, and was
intended to be conveyed by post, &c., containing bank notes
&c., he, the said Joseph I. Straughan, being, at the time of
such procuring, advising and assisting, a person employed in one of
the departments of the post office establishment, to-wit a carrier
of the mail, &c., contrary to the form of the act of Congress
in such case made and provided. The second count in the indictment
sets out the particular letter secreted, embezzled, and destroyed,
containing bank notes amounting to sixty dollars. The offense here
set out against Straughan, the mail carrier, is substantially in
the words of the statute, § 2. If any person employed in any
of the departments of the post office establishment, shall secrete,
embezzle or destroy any letter, packet, bag, or mail of letters,
with which he shall be entrusted or which shall have come to his
possession, and is intended to be conveyed by post, containing any
bank note, &c., such person shall, on conviction, be
imprisoned, &c.
The general rule is that in indictments for misdemeanors created
by statute, it is sufficient to charge the offense in the words of
the statute. There is not that technical nicety required as to form
which seems to have been adopted and sanctioned by long practice in
cases of felony and with respect to some crimes, where particular
words must be used and no other words, however synonymous they may
seem, can be substituted. But in all cases, the offense must be set
forth with clearness and all necessary certainty to apprise the
accused of the crime with which he stands charged. And we think the
present indictment contains such certainty, and sufficiently
alleges that the offense had, in point of fact, been committed by
Straughan. It charges the defendant not only with advising, but
procuring and assisting Straughan to secrete and embezzle, &c.
This necessarily implies that the act was done, and is such an
averment or allegation as made it necessary on the part of the
prosecution to prove that the act had been done.
The particular question put in the certificate of division is
whether an indictment grounded upon the said statute for advising,
&c., a mail carrier to rob the mail ought to set forth or
Page 32 U. S. 143
aver that the said carrier did in fact commit the offense of
robbing the mail. The answer to this as an abstract proposition,
must be in the affirmative; but if the question intended to be put
is whether there must be a distinct, substantive and independent
averment of that fact, we should say it is not necessary, and that
the indictment in this case sufficiently sets out that the offense
had been committed by Straughan, the mail carrier, and that no
defect appears in the indictment for which the judgment ought to be
arrested. A certificate to this effect must accordingly be sent to
the circuit court.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
North Carolina and on the question and point on which the judges of
the said circuit court were opposed in opinion and which was
certified to this Court for its opinion agreeable to the act of
Congress in such case made and provided, and was argued by counsel,
on consideration whereof it is the opinion of this Court that the
indictment in this case sufficiently sets out that the offense had
been committed by Straughan, the mail carrier, and that no
distinct, substantial, and independent averment of that fact was
necessary and that there is no sufficient cause for arresting the
judgment. Whereupon it is adjudged and ordered by this Court that
it be certified to the said circuit court that the indictment in
this case sufficiently sets out that the offense had been committed
by Straughan, the mail carrier, and that no distinct, substantial,
and independent averment of that fact was necessary, and that there
is no sufficient cause for arresting the judgment.
