fice to defraud by certain slips of paper, to be inclosed in a certain letter with a certain coin known as half dollar, which said slips of paper were then and there to be inclosed as aforesaid in the place of a certain sum of money, to wit, the sum of $162; and which said scheme and artifice was then and there intended by the said Owens to be effected by opening correspondence and communication with the said corporation by means of the Post-office Department of the United States,—did, in and for executing and attempting to execute the said scheme and artifice, then and there place in a certain post-office of the United States, to wit, the post-office at Alton, a certain letter, then and there having inclosed therein the said slips of paper and the said coin, and then and there addressed to the said Bowman Distilling Company." The letter is set forth in the opinion.

*

*

*

*

The section of the statute alleged to have been violated is as follows:"Sec. 5480. If any person, having devised or intending to devise any scheme or artifice to defraud or be effected by either opening or intending to open correspondence or communication with any person by means of the post-office establishment of the United States, shall, in and for executing such scheme and artifice, or attempting to do so, place any letter in any post-office of the United States, * such person so misusing the post-office establishment shall be punished by a fine." TREAT, J. An indictment was found against defendant under section 5480, Revised Statutes. A motion to quash has been interposed. The questions presented call for an interpretation of said section, and the sufficiency of the averments made. Substantially, the indictment charges that the defendant, being a debtor of the Bowman Distilling Company for $162.50, remitted to the latter, through the mail, a 50-cent coin, with certain slips of paper (character and value not stated), the letter inclosing the same being as follows:

"ALTON, Mo., February 21, 1883.

"Bowman Distilling Company — GENTS: Please inclosed find $162.50, being the whole amount due you from us, for which you will please place to our credit and forward the receipt for the same and oblige yours, truly,

A. B. OWENS & Co."

It is averred that defendant, within the meaning of said section, opened a correspondence with said creditor to defraud him by the means aforesaid. It is obvious, so far as the indictment discloses, that the fraudulent scheme could not be effective. The debt would not be discharged by the receipt of worthless slips of papers, nor even by the giving of a receipt obtained by fraud. If the design was to obtain credit for $162.50 and a receipt through the carelessness of the creditor, does the transaction fall within said section? No one was defrauded, and no one could possibly be. There may have been an attempt to cheat, cognizable, possibly, by some State statutes or a common law. Were the postal laws designed to draw within Federal jurisdiction each and every individual transaction between debtor and creditor, when postal correspondence ensues, with respect thereto, irrespective of the possibilities of effecting a fraud, if any were designed? Remittances may be made which may or may not be received in discharge of a debt, and may or may not be of the value stated. If the creditor chooses to receive such remittances - may be drafts, etc.—in payment of his demand, and it should turn out, after litigation that such remittances were valueless, and forwarded with the knowledge of the debtor that they were of no value, is resort to be had to the postal laws for

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the ascertainment of such facts and the punishment of the offender? If such is the scope of the section named, it may draw within Federal cognizance nearly all the commercial correspondence of the country as to the disputed demands and the value of remittances.

It appears to the court that the act was designed to strike at common schemes of fraud, whereby, through the post-office, circulars, etc., are distributed, generally to entrap and defraud the unwary, and not the supervision of commercial correspondence solely between a debtor and creditor. This seems to be the true interpretation from the language in the last clause in the section, viz.: —

"The indictment, information, or complaint may severally charge offenses to the number of three, when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall apportion the punishment especially to the degree in which the abuse of the post-office establishment enters as an instrument into such fraudulent scheme and device."

The court, on this motion, looks solely to the charge as made in the indict ment, without holding that no case of private correspondence between debtor and creditor can, under any circumstances, fall within the statute. It was hinted in argument that certain devices were resorted to, in connection with a registered letter, for the purpose of inducing the creditor to believe that the remittance had been tampered with and abstracted while in the post-office, and that at the trial facts to that effect would appear. If such are the facts the indictment does not disclose them. It must suffice that averments made do not bring the defendant within the statute. Whether the fact dehors the record may justify a new indictment, it is for the pleader to determine. The motion is sustained.

§ 84. Obstructing Passage of Mail - Arrest of Driver for Breach of the Peace. — If a mail carrier so drives his carriage as to endanger pedestrians, a constable may stop him, without a warrant, in order to prevent a breach of the peace, without rendering himself liable for obstructing the passage of the mail.1

§ 84a.

Preventing Horse from being Taken from Stable.

- An indictment for obstructing and retarding a horse and vehicle while carrying the mail is not sustained by proof of preventing a horse from being taken out of the stable to be used for the purpose of carrying the mail.2

§ 84b.

Arrest of Felon. - So to stop the mail to arrest the carrier for a felony is not within the statute.3

§ 84c. Unlawful Franking of Letters. Franking printed matter sealed in envelopes for another is not an offense under the law punishing the franking of letters for another.⭑

1 U. S. v. Hart, Pet. C. C. 390.

2 U. S. v. McCracken, 3 Hughes, 544.

8 U. S. v. Kirby, 7 Wall. 482.

4 Dewees' Case, Chase's Dec. 531.

CHAPTER III.

CRIMES AGAINST PUBLIC JUSTICE.

BRIBERY-OFFER TO ACCEPT BRIBE NOT A CRIME-ELEMENTS OF
THE CRIME OF BRIBERY.

HUTCHINSON v. STATE.

[36 Tex. 293.]

In the Supreme Court of Texas, 1871.

1. Bribery-Elements of Crime. — An indictment for bribery,1 charged the defendant, a road overseer, with letting out and giving to one T. a contract to repair a certain road, upon condition and with the express understanding and agreement, that the said T., should pay to the defendant one-half of all the profits made under the contract. Held, to be insufficient; the indictment should have charged specifically that the defendant accepted a bribe.

2. An Offer to Accept a Bribe is not Punishable as a crime, under the laws of this State.

3. In Order to Constitute the Crime of Bribery, the gift, advantage, or emolument must be bestowed for the purpose of inducing the officer to do a particular act, in vio. lation of his duty, or as an inducement to favor, or in some manner to aid the person, offering the same, or some other person, in a manner forbidden by law,2 and the gift, advantage, or emolument must precede the act.3

The defendant was indicted in the District Court of Washington County for bribery. The indictment charged the defendant with accepting a bribe, in that he, as road overseer of Washington County, let out and gave to one Tarver a contract to repair and do all necessary causewaying on the public road leading from the court-house in Brenham to the county line on the wire road, on or before the 1st day of April, 1872, for which the said Tarver was to receive the sum of sixteen hundred dollars, by draft on the County Treasurer of Washington County, to be paid out of the general road fund, on condition and with the understanding and agreement that the said Tarver would give and pay to the defendant one-half of the profits made on the contract.

1 art. 1870, Pasch. Dig.

2 Pasch. Dig., art. 1874.

(286)

3 Pasch. Dig., art. 1875.

J

The defendant moved to quash the indictment:

First. Because it did not appear from the face of the indictment that any offense defined by, known to, or punishable by the law of the State had been committed.

Second. Because it did not sufficiently allege that any bribe was accepted, or in what said bribe consisted.

Third. Because the indictment did not sufficiently allege that the bribe charged to have been accepted was for the purpose of influencing the action of defendant in his official capacity, and because the indictment was in other respects too general, vague, and uncertain.

The motion to quash was overruled, and the defendant was, on the trial of the case, convicted, and his punishment assessed at two years confinement in the penitentiary. Motion for a new trial being overruled defendant excepted and gave notice of appeal, assigning for error the rulings of the court.

Breedlove and Ewing, for the appellant.

Wm. Alexander, Attorney-General for the State.

OGDEN, J. The first assignment of errors in this case is well taken, for several reasons. The indictment is vague and uncertain, and fails to charge any offense against the laws of this State; and the court erred in not sustaining the exceptions to the same.

The indictment was drawn under article 1870,1 and the pleader attempted to charge the defendant with accepting a bribe; but the indictment wholly fails to make any such charge specifically, and only charges him with offering to receive a bribe. This is not an offense punishable as a crime under the law.

Again, in order to constitute the offense attempted to be charged, the gift, advantage, or emolument must be bestowed for the purpose of inducing the officer to do a particular act in violation of his duty, or as an inducement to favor, or in some mahner aid the person offering the same, or some other person, in a manner forbidden by law. This is necessary in order to constitute the crime of bribery, and it should therefore be alleged distinctly in the indictment. And yet the indictment may be literally true, and yet the very act he is charged with doing may have been directly in accordance with his duty, and even commanded by the law.

And again, article 1875,3 declares that, in order to constitute the crime of bribery, the gift, advantage, or emolument must precede the act, and this should be charged in the indictment; but that instrument alleges most definitely that the defendant was to receive no gift, advantage, or emolument until some future and indefinite day.

And finally, the indictment fails to show that the defendant did, or could, at any time receive any gift, advantage, or emolument for doing the act with which he is charged. There are other fatal defects in the indictment which need not now be noticed, and as the indictment fails to charge any offense punishable under the law, the judgment is reversed and the case dismissed.

Reversed and dismissed.

BRIBERY-SOMETHING OF VALUE MUST BE RECEIVED.

STATE v. WALLS

[54 Ind. 561.]

In the Supreme Court of Indiana.

1. To Constitute Bribery the person bribed must receive something of value.

2.

Void Promissory Note. A prosecuting officer received the promissory note of an accused person, to influence his official conduct in the prosecution. Held, that the note being void, the offense of bribery was not committed.

NIBLACK, J. This was a prosecution for bribery, under section 39 of that portion of the criminal code which defines and punishes felonies.1

The indictment contains three counts. Omitting the merely formal parts, the first count charges "that on the fifth day of July in the year of our Lord one thousand eight hundred and seventy-four, one James P. Waugh and George H. Waugh, were then and there charged with having committed a felony, to wit, on the 4th day of July, in the year 1874, at said county of Boone and State aforesaid, feloniously attempted to commit a violent injury upon the person of one Elizabeth Waugh, they, the said George H. Waugh and James P. Waugh, then and there having a present ability to commit said injury, by then and there feloniously, purposely and with premeditated malice, shooting at and against the said Elizabeth Waugh, with a certain pistol then and there loaded with gunpowder and leaden shot, which the said George H. Waugh and James P. Waugh then and there in their hands held, with intent then and there and thereby, her, the said Elizabeth Waugh, feloniously, purposely and with premeditated malice to kill and murder. That afterwards, to wit, on the twelfth day of September, in the year of 1874, the grand jury of the county of Boone, and State of Indiana, duly returned into open court an indictment against the said George H.

1 See Rev. Stats. 1876, p. 443.