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Opinion of the Court.

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of the parties. 1 Starkie's Ev. 447. The principle of law, by which the jury must be governed in finding a verdict, cannot be left to their arbitrary determination. The rights of parties must be decided according to the established law of the land, as declared by the legislature or expounded by the courts, and not according to what the jury in their own opinion may suppose the law is, or ought to be. Otherwise the law would be as fluctuating and uncertain as the diverse views and opinions of different juries in regard to it." Memphis Gayoso Gas Co. v. Williamson, 9 Heiskell, 314, 341; Gregory v. Underhill, 6 Lea, 207, 211.

Tested by this rule, whenever the statute is applied, it must be upon the assumption that although the court would have found a different verdict, because of the weakness of the evidence, yet there was some evidence tending to establish the cause of action. Courts rarely grant a new trial after two verdicts upon the facts in favor of the same party, except for error of law, and the statute, in the interest of the termination of litigation, makes that imperative which would otherwise be discretionary. For, decisions under similar statutory provisions see Silsbe v. Lucas, 53 Illinois, 479; III

. Cent. Railroad

; . Co. v. Patterson, 93 Illinois, 290; Carmichael v. Geary, 27 Indiana, 362; Boyce v. Smith, 16 Missouri, 317; Wildy v. Bonney's Lessee, 35 Mississippi, 77 ; Rains v. llood, 23 Texas, 555; Watterson v. Moore, 23 W. Va. 404.

We can perceive nothing in the statute thus applied which amounts to an arbitrary deprivation of the rights of the citizen, and concur with the Supreme Court of Tennessee that this act, which had been in force for more than sixty years before the adoption of the Fourteenth Amendment, was not invalidated by it, while the .Fifth Amendment had no application whatever.

The statement in the judgment of affirmance is that “the court adjudges that there is no evidence to support the verdict of the jury;” and if this were taken literally, it would follow that no recovery could be had, as matter of law; and we therefore suppose that the language used indicates simply the opinion of the court that the jury ought not to have found

Counsel for Parties.

the verdict that they did, and that the judgment of the court below, refusing to grant a new trial upon the facts, would have been reversed, but for the existence of the statute, which made it error to award it. Knoxville Iron Co. v. Dobson, 15 Tea, 409, 418.

Assuming that the validity of the statute was drawn in question, yet there was clearly color for the motion to dismiss, and the case may be disposed of upon the motion to affirm. That motion is sustained, and the judgment is accordingly

Affirmed.

UNITED STATES v. LACHER.

CERTIFICATE OF DIVISION IN OPINION FROM THE CIRCUIT COURT

OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW

YORK.

No. 654. Subinitted March 28, 1890. – Decided April 14, 1890.

Section 5467 of the Revised Statutes creates two distinct classes of of.

fences: the one relating to the embezzlement of letters, etc.; the other

relating to stealing their contents. Sections 3891 and 5467 of the Revised Statutes are to be construed together

– the offences of secreting, embezzling or destroying mail matter which contains articles of value beiny punishable under the one, and like offences as to mail matter which does not contain such articles being

punishable under the other. When there is an ambiguity in a section of the Revised Statutes, resort

may be had to the original statute from which the section was taken, to ascertain what, if any, change of phraseology there is, and whether such

change should be construed as changing the law. Penal statutes, like all others, are to be fairly construed according to the

legislative intent, as expressed in the act. The court again declines to answer a certified question which contains no

clear and distinct proposition of law.

The case is stated in the opinion.

Mr. Assistant Attorney General Maury for the plaintiff.

Mr. Benjamin Barker, Jr., for the defendant.

Opinion of the Court.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

The defendant, an employé in the post-office at New York, was found guilty of embezzling a letter containing an article of value on an indictment under section 5467 of the Revised Statutes. A hearing on motions for new trial and in arrest of judgment before the circuit judge of the Second Circuit and the district judge, holding the court, resulted in a division of opinion upon the following questions, which were certified to this court:

“1. Whether an offence against the United States under section 5467, Revised Statutes, is charged in either the first or the third count of the indictment?

“ 2. Whether the embezzlement by a person employed in a department of the postal service of a letter intended to be conveyed by mail and containing an article of value, which shall have come into the possession of such person, is made an offence against the United States by $ 5467 of the Revised Statutes of the United States, and whether any penalty is prescribed for such embezzlement by said section?" Section 5467 is as follows:

Any person employed in any department of the postal service who shall secrete, embezzle, or destroy any letter, packet, bag, or mail of letters intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any mail carrier, inail messenger, route agent, letter-carrier, or other person employed in any department of the postal service, or forwarded through or delivered from any post office or branch post-office established by authority of the Postmaster General, and which shall contain any note, bond, draft, check, warrant, revenue stamp, postage stamp, stamped envelope, postal card, money order, certificate of stock, or other pecuniary obligation or security of the government, or of any officer or fiscal agent thereof, of any description whatever; any bank-note, bank post-bill, bill of exchange, or note of assignment of stock in the funds; any letter of attorney for receiving annuities or

VOL. CXXXIV-40

Opinion of the Court.

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dividends, selling stock in the funds, or collecting the interest thereof; any letter of credit, note, bond, warrant, draft, bill, promissory note, covenant, contract, or agreement whatsoever, for or relating to the payment of money, or the delivery of

any article of value, or the performance of any act, matter or thing; any receipt, release, acquittance, or discharge of or from any debt, covenant, or demand, or any part thereof; any copy of the record of any judgment or decree in any court of law or chancery or any execution which may have issued thereon; any copy of any other record, or any other article of value, or writing representing the same; any such person who shall steal or take any of the things aforesaid out of any letter, packet, bag, or mail of letters which shall have come into his possession, either in the regular course of his official duties or in any other manner whatever, and provided the same shall not have been delivered to the party to whom it is directed, shall be punishable by imprisonment at hard labor for not less than one year nor more than five years."

It is argued that no indictment can be sustained under this section against a post-office employé for secreting, embezzling, or destroying any letter, packet, bag, or mail of letters intended to be conveyed by mail, etc., containing any of the articles named, or any other article of value, and that the only offence punishable under the section is that of stealing or taking any of the things aforesaid “out of any letter, packet, bag, or mail of letters.” As secreting, embezzling or destroy'ing letters, etc., containing articles of value, are plainly grave offences, and are described in the section with particularity, the intention to impose a penalty on their commission cannot reasonably be denied, and although the apparent grammatical construction might be otherwise, the true meaning, if clearly ascertained, ought to prevail. If there be any ambiguity in section 5167, inasmuch as it is a section of the Revised Statutes, which are merely a compilation of the statutes of the United States, revised, simplified, arranged and consolidated, resort may be had to the original statute from which this section was taken to ascertain what, if any, change of phraseology there is and whether such change should be construed as

Opinion of the Court.

changing the law. United States v. Bowen, 100 U. S. 508, 513; United States v. Hirsch, 100 U. S. 33; Myer v. Car Co., 102 U. S. 1, 11. And it is said that this is especially so where the act authorizing the revision directs marginal references, as is the case here. 19 Stat. c. 82, $ 2, p. 268; Endlich on Int. Statutes, $ 51. Accordingly, we find that this section took the place of section 279 of the act of June 8, 1872 (17 Stat. 318), which reads as follows:

“That any person employed in any department of the postal service who shall secrete, embezzle, or destroy any letter, packet, bag, or mail of letters intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any mail-carrier, mail-messenger, route-agent, letter-carrier, or other person employed in any department of the postal service, or forwarded through or delivered from any post-office or branch post-office, established by authority of the Postmaster General, and which shall contain any note, bond, draft, check, warrant, revenue-stamp, postage-stamp, stamped envelope, postal-card, money-order, certificate of stock, or other pecuniary obligation or security of the government, or of any officer or fiscal agent thereof, of any description whatever; any bank-note, bank post-bill, bill of exchange, or note of assigninent of stock in the funds; any letter of attorney for receiving annuities or dividends, sehing stock in the funds, or collecting the interest thereof; any letter of credit, note, bond, warrant, draft, bill, promissory note, covenant, contract, or agreement, whatsoever, for or relating to the payment of money, or the delivery of any article of value, or the performance of any act, matter, or thing; any receipt, release, acquittance, or discharge of or from any debt, covenant, or demand, or any part thereof; any copy of the record of any judgment or decree in any court of law or chancery, or any execution which may have issued thereon; any copy of any other record, or any other article of value, or writing representing the same; any such person who shall steal or take any of the things aforesaid out of any letter, packet, bag, or mail of letters which shall have come into his possession, either in the regular course of his official duties, or

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