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should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children,- innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the territory of Utah, just so do these victims multiply and spread themselves over the land." While every appeal by the court to the passions or the prejudices of a jury should be promptly rebuked, and while it is the imperative duty of a reviewing court to take care that wrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862 (12 Stat., 501), saw fit to make bigamy a crime in the territories. This was done because of the evil consequences that were supposed to flow from plural marriages. All the court did was to call the attention of the jury to the peculiar character of the crime for which the accused was on trial, and to remind them of the duty they had to perform. There was no appeal to the passions, no instigation of prejudice. Upon the showing made by the accused himself, he was guilty of a violation of the law under which he had been indicted; and the effort of the court seems to have been not to withdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make them partial, but to keep them impartial. Upon a careful consideration of the whole case, we are satisfied that no error was committed by the court below.

Judgment affirmed. (a)

866. Bigamy and polygamy.-On conviction for bigamy, at Alexandria, in the District of Columbia, in 1817, the defendant was held entitled to the benefit of clergy, and was sentenced to be burnt in the hand. United States v. Lambert,* 2 Cr. C. C., 137.

§ 867. Upon the trial on indictment for polygamy, an instruction to the jury that "they should consider what are to be the consequences to the innocent victims of this delusion," was held not to be an error. United States v. Reynolds,* 1 Utah T'y, 319.

§ 868. That plural or polygamous marriage is a part of the religion of the defendant is no defense to an indictment for polygamy under the statute of the United States of 1862. United States v. Reynolds,* 1 Utah Ty, 226.

869. The statute of 1 Jac. 1, ch. 11, prohibiting bigamy, was in force in Maryland on February 27, 1801, and by the act of congress of that date became a part of the law of the county of Washington. The act of Maryland of 1706, declaring that this English statute, "and every article, clause, matter and thing in said act contained, shall be and are in full force, to all intents and purposes, within this province," made the act in force in Maryland in the same manner and to the same extent as it was in force in England and Wales. The words “are in full force” imply a recognition of the already existing validity of the act in Maryland, and such was the fact. United States v. Jennegen,* 4 Cr. C. C., 118.

$870. Upon an indictment, in the District of Columbia, for bigamy, it is incumbent on the United States to prove that one of the marriages, which took place in Pennsylvania, was a valid marriage according to the laws of Pennsylvania. Quæere, whether a marriage de jure can be presumed from a marriage de facto in Pennsylvania. Ibid.

(a) MR. JUSTICE FIELD Concurred, except as to the admission of evidence given on a former trial upon a different indictment.

The accused was sentenced by the lower court to imprisonment at hard labor. On a rehearing this was held to be error, and the judgment was reversed and the cause remanded, with instructions to the lower court to cause the sentence to be set aside and a new one entered on the verdict in all respects like that before imposed, except so far as it requires the imprisonment to be at hard labor."

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SUMMARY

XII. THE POSTOFFICE.

[See XXVI, 6, infra; also §§ 1104-1106.]

1. In General.

Obstructing the mail, SS 871, 872.- Stealing from the mail; letter thrown into hall by carrier, § 873; opening letter as agent, § 874; proof of value of bank-notes, §§ 875, 884; letter need not be taken out of building. § 876; accused must be an officer or employee, $ 877; law applies to letters in transitu, § 878; taking without criminal intent, $879; taking a letter from a place where it is kept, § 880; after letter has passed from control of postoffice, § 881; letter not intended to be transported by post, § 882; mail carrier not sworn, § 83.

§ 871. The act of congress of March 3, 1825, punishing any person who "shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same," applies only to those who know that their acts will have that effect, and perform them with the intention that such shall be their operation. It does not apply to a temporary detention of the mail caused by the arrest of the carrier upon an indictment in a state court for murder. United States v. Kirby, $$ 885-883. See § 919. $$72. Horses used in carrying the mail cannot be seized and detained by one who has furnished food for them, if by such act the mail would be obstructed. United States v. Barney, $$ 889-891. See § 949.

$873. Section 3892 of the Revised Statutes, punishing the taking of "any letter. which has been in any postoffice, or branch postoffice, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with a design to obstruct the correspondence or pry into the business or secrets of another," or the secreting, embezzling or destroying the same, protects a letter thrown into the hall by the carrier, under the direction of the person to whom the letter was directed, to leave her letters there. One taking such a letter before it reaches the owner, and opening and reading the same, and resealing it and delivering it to the owner, is punishable. United States v. McCready, §§ 892, 893. See § 916, 936.

$874. The act of March 3, 1825, punishing any person who "shall take any letter or picket... out of a postoffice, or shall open any letter or packet which shall have been in a postoffice, or in custody of a mail carrier, before it shall be delivered to the person to whom it is directed, with a design to obstruct the correspondence, to pry into another's business or secrets; or shall secrete, embezzle or destroy any such mail, letter or packet," does not punish the agent to receive the letter from the office fully authorized by the party to whom it was directed, who embezzles such letter before delivering it to his principal. But if the defendant, at the time he took the letter from the postoffice, did it with the criminal intent of opening it for the purpose of prying into another's business or secrets, the act is larc-ny, although he had the permission of the person to whom the letter was directed to bring his letters from the office. United States v. Sander, $$ 894-897. See § 922.

$87. To justify a conviction under the twenty-second section of the postoffice act, puuishing any person who "shall open, embezzle or destroy any such mail, letter or packet, the same containing any article of value," it must be proved that the bank-notes alleged to have ben taken from the letter were of some value. Any one whose business or profesion leas him to an acquaintance with such notes may prove them to be genuine. United States v. Nott. 893-904.

$76. Under the twenty-second section of the postoffice act, punishing any person who "shall steal the mail, or shall steal or take from or out of any mail, or from or out of any pestoffice, any letter or packet," the letter need not be taken out of the postoffice building ia or ler to constitute the offense. If the defendant opens the letter and takes out money, and reseals the letter and returns it to its place without leaving the room, he is guilty of the offense under the statute. Ibid.

§ 877. Section 21 of the act to regulate the postoffice, declaring that "if any person employed in any of the departments of the postoffice establishment shall unlawfully detain or open any letter, packet or mail of letters with which he shall be intrusted, or which shall have come into his possession, and which are inten·led to be conveyed by post, on conviction, shall be punished," etc., applies only to persons employed in the postoffice department, as carrier, postmaster or assistant postmaster, into whose possession letters intended to be conveyed by post ordinarily come. It must be alleged and proved that the defendant was thus employed. He must have been, at the time of the act, a regular employee. A person who had

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assistant, and who had left the office, and occasionally came in to give instructions to a new assistant, in the absence of the postmaster, and who received no compensation, is not within the statute. Ibid.

§ 878. Section 21 of the postoffice act of 1825, providing a penalty against "any person employed in any of the departments of the postoffice establishment" who "shall unlawfully detain or open any letter, packet or mail of letters with which he shall be intrusted, or which shall have come into his possession, and which are intended to be conveyed by post,” applies to letters in transitu, and which have not reached their place of destination. It does not apply to letters withheld from the postmaster by his assistant after they have reached the office of their destination. United States v. Pearce, §§ 905–907.

$879. Under section 22 of the postoffice act of 1825, providing a penalty against any person who shall steal the mail, or shall steal, take from, or out of, any postoffice, any letter or packet, whether with or without the consent of the person having custody thereof, and shall open, embezzle or destroy any such mail, letter or packet, the same containing an article of value, a mere taking from the mail without any criminal intent is not punishable. The tak ng must not only be unlawful but felonious; it must be a clandestine taking-such as would amount to a larceny of personal property. Ibid.

§ 880. Furtively and feloniously removing a letter from and out of the place where it is kept in a postoffice is stealing it from and out of the postoffice within the act of congress punishing the offense, whether the removal be beyond the building containing the postoffice or not, or the abduction be no more than the transfer of the letter to the pocket of the person taking it. United States v. Marselis, §§ 908, 909.

SS1. After the voluntary termination of the custody of a letter by the postoffice department or its agents, the property in and right of possession to the letter belong wholly to its real proprietor, and his rights are under the guardianship of the local law and not of that of the United States. So where a person embezzles money contained in a letter directed to another person of the same name and delivered by letter carrier to another for him, the federal courts have no jurisdiction of such embezzlement. United States v. Parsons, §§ 910, 911.

§ 882. On an indictment under the act of March 3, 1825, for stealing a bank-note from a letter placed in the mail of the United States and intended to be conveyed by post, it is no defense that the letter was placed in the mail by one postmaster, under an agreement with a postmaster at an intermediate point on its route, that it was not to be sent to its apparent destination, but returned to the writer. The purpose of the writer, not to have the letter go to its apparent destination, does not affect its character or prevent it from being a letter intended to be transported by post, as required by the statute and charged in the indictment. United States v. Foye, §§ 912-915.

§ 883. The third section of the act of March 3, 1825, expressly subjects persons employed in the conveyance of the mails to all pains, penalties and forfeitures for violating the injunctions of the act, though not sworn. It is held that a mail carrier is punishable under the twenty-first section of the same act for stealing a bank-note from a letter deposited in the mails, although he has not been sworn. Ibid.

§ 884. Where a mail carrier was indicted under an act of congress for stealing, from a letter deposited in the mail, “a certain bank-note, of the denomination of $5, purporting to be issued by the Casco Bank of Portland, in the state of Maine," an instruction that if the jury believed the evidence offered by the government, tending to prove that the person whoinclosed the note in the letter took it as of the value of $5, that the defendant passed it in discharge of a debt of $5, and the testimony of a broker accustomed to receive the bills of the bank that it was like the bills he was accustomed to receive, it was competent for them to find that this was a bank-note of the value of $5, was held not to be erroneous. Ibid [NOTES. See § 916-955.]

UNITED STATES v. KIRBY.

(7 Wallace, 482-487. 1868.)

CERTIFICATE OF DIVISION from the U. S. Circuit Court, District of Kentucky. STATEMENT OF FACTS.- Defendants were indicted, under the act of March 3, 1825, for obstructing and retarding the passage of the mail, etc. They pleaded that Farris, the mail carrier, had been indicted for murder in a state court of Kentucky, and that a bench warrant was issued by said court and placed in the hands of Kirby, sheriff of the county, and that Farris was arrested on said warrant, without any intent on the part of the defendants to retard the mail.

The judges were divided in opinion as to whether the defendants were liable on the facts stated.

885. Acts lawful in themselves, from the execution of which a temporary delay to the mails unavoidably follows, are not punishable.

us.

Opinion by MR. JUSTICE FIELD.

There can be but one answer, in our judgment, to the questions certified to The statute of congress, by its terms, applies only to persons who "knowingly and wilfully" obstruct or retard the passage of the mail, or of its carrier; that is, to those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation. When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary object. The statute has no reference to acts lawful in themselves from the execution of which a temporary delay to the mails unavoidably follows.

§ 886. All persons in the public service are exempt from arrest upon civil process, but the rule is different when the process is issued upon a charge of felony.

All persons in the public service are exempt, as a matter of public policy, from arrest upon civil process while thus engaged. Process of that kind can, therefore, furnish no justification for the arrest of a carrier of the mail. This is all that is decided by the case of The United States v. Harvey, 8 Law Rep., 77, to which we are referred by the counsel of the government. The rule is different when the process is issued upon a charge of felony. No officer or employee of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the constitution and laws. The public inconvenience which may occasionally follow from the temporary delay in the transmission of the mail caused by the arrest of its carriers upon such charges is far less than that which would arise from extending to them the immunity for which the counsel of the government contends. Indeed, it may be doubted whether it is competent for congress to exempt the employees of the United States from arrest on criminal process from the state courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to congress unless clearly manifested by its language.

General terms should be so

§ 887. Rule for the construction of statutes. All laws should receive a sensible construction. limited in their application as not to lead to injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter. 8888. A mail carrier may be arrested on a charge of murder.

The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted "that whoever drew blood in the streets should be punished with the utmost severity," did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II., which enacts that a prisoner who breaks prison shall be guilty

of felony, does not extend to a prisoner who breaks out when the prison is on fire" for he is not to be hanged because he would not stay to be burnt." And we think that a like common sense will sanction the ruling we make, that the act of congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder. The questions certified to us must be answered in the negative; and it is so ordered.

MR. JUSTICE MILLER did not sit in this case.

UNITED STATES v. BARNEY.

(District Court for Maryland: 3 Hughes, 545–549; 3 Hall, L. J., 128. 1809.)

Opinion by WINCHESTER, J.

STATEMENT OF FACTS. The indictment in this case, which charges the defendant with having wilfully obstructed the passage of the public mail at Susquehanna river, is founded on the act of congress of March, 1799. The defendant sets up as a defense and justification of this obstruction of the mail, that he had fed the horses employed in carrying the mail for a considerable time, and that a sum of money was due to him for food furnished at and before the time of their arrest and detention.

On this state of facts two questions have been agitated. 1st. Whether the right of an innkeeper to detain a horse for his food extends to horses owned by individuals and employed in the transportation of the public mail? And, 2d. Whether such right extends to horses belonging to the United States, employed in that service?

The first question involves the consideration of principles of some extent, and to decide correctly on the second it may be necessary to state them generally.

$ 889. Lien defined.

Lien is generally defined to be a tie, hold, or security upon goods or other things which a man has in his custody till he is paid what is due to him. From this definition it is apparent that there can be no lien where the property is annihilated, or the possession parted with voluntarily and without fraud. 2 Vern., 117; 1 Ath., 234. The claim of a lien otherwise well founded cannot be supported if there is, 1st. A particular agreement made and relied on. Sayer's Rep., 224; 2 R. A., 92. Or, 2d. Where the particular transaction shows that there was no intention that there should be a lien, but some other security is looked to and relied upon. 4 Burr., 2223.

If, therefore, in this case, the agreement between the defendant and the public agent actually was that he should be paid for feeding the public horses on as low terms as any other person on the road would supply them, he could not justify detaining the horses; for the particular agreement thus made, and under which the food was furnished, is the foundation of the remedy of the defendant, and it can be pursued in no other manner than upon that agreement. Or, if there was no particular agreement, this case is such, that, between the defendant and a private owner of horses and carriages employed in transporting the mail, I incline to think it could not legally be presumed a lien was ever intended or contemplated. A carrier of the mail is bound not to delay its delivery, and under severe penalties, and it can scarcely be supposed that ne

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