Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1888-04-26
A DEMURRER SUSTAINED.

And Charles Malloy set at Liberty.
E The Indictment Too Weak to Hoi
HIM.
In the case of Charles Malloy, of Bur
bank, Dakota, indicted for using til
9 mails for fraudulent purposes, the at
D torneys for the defendant, Messrs. Uanr
bell & Barnes, last week presented an,
argued o demurrer, which was sustaine,
by tho court. The details are given ii
Q the following opinion from the bench:
The United States VS.. CHARLES Malloy
April Term. 1887.
OPINION.
Trip, O. j. This is an indictmen
founded upon section $3.50, us. II. S
which In substance charges:
That on the fret day of April, 1887, a
Burbank, county of Clay, in the seconc
Judicial district of Dakota territory ane
within the jurisdiction of this court
Zone Charles Malloy, late of said dis
trict and territory, having nnlawfuliy
devised a scheme TIC defrsud, which sale
scheme was to be accomplished by open
ing a correspondence by means of the
post office establishment of the United
States, between said Charles Malloy, and
divers other persons OF the United States
and by RENTING with said c%orrespon-
dance, certain bills of exchange drawn
By said Charles Malioy on certain banks
OF the United States, which said banks
dia not Ia facf have any existence, said
nilis OF exchange being accompanied in
each case by an order for goods, wares
l and nnyohap1ica Co. -rI..l- 81 N
exchange were to be payment, he the
said Charles Malloy, intending BY said
scheme to obtain the property of divers
citizens of the United States without
payment therefor, and the said Charles
Malioy for attempting to execute said
scheme on the date aforesaid, did unlaw.
fully place a letter in the postoffoe OF
the United States, at Burbank in said
second judicial district of Dakota terri
tory, addressed to Allen, Moon and
company, ST. Paul. Minnesota, which
said letter contained an order for goods.
wares and merchandise to be sold to he
Eagle Supply company of Burbank,
Dakota territory, in payment for which.
said Charles Malloy RENTED with said
letter a bill of exchange drawn by the
said Charles Mailoy. on the Giles Ma
tional bank Of New York, for the sum Of
six hundred and seventy-fve dei .ars. the
said Giles National bank. thap arr there
having no existence, he. the sid Charles
Malloy, then and there intending to de-.
fraud said Allen, Moon and
out of goods, wares and merchandise. Of
the value of six hundred and SEVENTY
five dollars, and which said letter was in
She words and letters and figures as fell
lows:
Allen, Moon & Co.. st. Paul. Dear sirs. Your
draft, sent me for goods bought by the Eagle
supply 90. has been received some time ago.
but there have been no trains running for the
dHAs. MsI1or, ohsan
And which said draft was in the words,
letters and figures as follows:
$e?5 Morgan National Bank, Burbank, Oak.
April 1, lssI1-Pay to the order of Allen, Moon
&go. six hundred and seyenty.fve dollars
value received and charge to account Of
To Giles National Bank, New York, No 672.
He, the said Charles Malloy having
formerly sent TO said Allen, Moon
and company 9 list OF goods, wares and
merchandise, ena which said letter and
draft above set forth was intended as an
order and payment for the same con-
trary to the form OF the statute &c.
The defendant appears and demurs to
the indictment, upon the ground that it
does not state facts sufficient to consti-
tnte o crime against the United States.
Ihe section ls somewhat involved, but
1t is apparent not only from Its context,
and that OF the other sections OF the ORR
ginal act OF which it was a part prior to
the revision of the statutes, that the
evil sought to be remedied by the stat
ute, was the improper use of the mails
I'm tho Ann0.,N N /, n ., ~ n ~ ~ k-~-l-l.-A
schemes and practices. Congress has
not sought by this section, to step out
side OF its legislative province, and at
tempted to punish such fraudulent
schemes and practices themselves, which
are properly crimes against the state,
rather than the national sovereignty. |
The gist of the o%ffense, then, is the i'm
proper use OF the postofice establish. /
ment of the Uaited States.
A careful analysis OF the section re-
veals the fact, that the affirmative act
which Is made punishable, is the placing |
IN or taking from, the postofice, any |
letter or packet, under the circumstances
named in the section. The simple fact, |
of placing In, or taking from, the post
office a letter or packet, could not of t.
sell, be unlawful, or q misuse of the
p~ostofioe establishment. Such act alone. |
would be . lawful and proper use OF such
establishment, the use for which it was
intended; the facts and circumstances
surrounding snch taking or receiving |
then, must give criminality to the act,
and must therefore constitute the ma
terial allegations of the indictment.
What are the circumstances that rem
der the taking or receiving of q letter or
packet, from the postoffice, unlawful,
within the meaning Of the sections?
First, the person who takes or re-.
csives such letter or packet, must have
devised, or must intend to devise, some /
scheme to defraud.
Second. such schemes must be JIM
tended TO be effected, by means of the
postofice establishment, either by him
self by opening, or by intending to open
a correspondence with some person
within Or without the United States; or |
by i~nciting such person to open a corr
respondence with him. These two in
gradients are essential to constitute the
crime sought to be punished; when the
letter or packet ia placed in or
taken from the p~ostofice, il is essential
that the party who places it there, or
takes it therefrom, shall have already
devised q scheme to defraMd, or that he
Intends to devise such scheme, and that
such scheme is to be effected by open
ing such correspondence, OF which the
letter or packet forms a part, by means
OF the postofioe establishment. 1t IS 1
necessary then, that the indictment |
should contain such allegations of fact,
that the court from inspection thereof, |
can say aR a mRtker of law that N kha