The defendant was indicted in the circuit court of the United States for the Southern district of New York in October, 1896, for embezzling and stealing a certain letter and its contents, described in the indictment, containing money. The indictment was under section 5467, Rev. St., which is set out in the margin. The defendant was employed in a department of the postal service as a clerk at Station F, a branch post office of the United States in the city of New York.
The indictment contained three counts. The first and second counts charged that the defendant willfully embezzled, etc., the letter, which was intended to be delivered by a letter carrier. These counts were drawn with reference to the first clause in the statute above referred to. The third count is under the second clause of the statute, and alleged that the defendant, 'being then and there employed in a department of the postal service of the United States, to wit, as clerk at Station F, a branch post office of the United States, in the said city of New York, did unlawfully, willfully, and feloniously steal, take, and carry away a certain United States treasury note of the denomination and value of one dollar, and three silver certificates of the United States, each of the denomination and value of one dollar, the said treasury note and the said silver certificates then and there bein the money and property of one Joseph E. Jacobs, and the same treasury note and the same silver certificates were then and there feloniously stolen and taken as aforesaid by the said William R. Hall from and out of a certain letter which then and there had come into his possession in his capacity as such clerk, as aforesaid, and by virtue of his said office and employment, and the said letter was directed in the tenor following, that is to say: 'Mrs. Susan Metcalf, No. 346 E. 24th St., New York City, N. Y.,' and the same was then intended to be delivered by a letter carrier, and had not then been delivered to the party to whom the same was directed,' against, etc.
The defendant was arraigned, pleaded not guilty, and was subsequently tried at a term of the United States circuit court for the Southern district of New York, and convicted and sentenced to imprisonment at hard labor in the Kings county penitentiary for the term of two years.
Upon the trial, after the evidence had been given on the part of the prosecution, and the government had rested its case, the counsel for the defendant asked the court to direct the jury to acquit the defendant upon several grounds: (1) That the evidence failed to prove the crime charged in the indictment; (2) that a material allegation to be proved by the government was the fact that the letter, described in the indictment and alleged to have been secreted, destroyed, and embezzled, and its contents stolen, by the defendant, was intended to be delivered by a letter carrier, while the uncontradicted evidence showed that such letter was not intended to be delivered by a letter carrier, and therefore a material allegation in the indictment was not only not proved but was absolutely disproved; (3) that there was a fatal variance between the indictment and the proofs offered to sustain it by the government, and the defendant should therefore be acquitted.
The motion to direct an acquittal was denied by the court, and the defendant duly excepted. The defendant sued out a writ of error from this court to review the judgment of conviction, and the validity of the exception to the refusal of the court to direct the jury to acquit is the sole question now before us.
After his conviction the defendant moved in arrest of judgment and for a new trial. The judgment was arrested on the first two counts, and the motion for a new trial was denied. We take a statement of the facts proved upon the trial from the opinion delivered by the learned judge in denying that motion, as we think the statement contains all that is material for the consideration of the case, and that it is a correct summary of the evidence in the particulars mentioned. It is as follows: