UNITED STATES SUPREME COURT DECISIONS ON-LINE

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 clubjuris

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."