
    No. 327
    ROTH v. UNITED STATES
    U. S. Circuit Court of Appeals, 6th Circuit
    No. 877.
    Decided Dec. 4, 1923
    939. POST OFFICE — Use of decoy letter to identify criminal employe justified — General statute as to stealing mail matter applicable to employes.
    629. INDICTMENT AND INFORMATION —Indictment may be found pending preliminary examination.
    291. CONSTITUTIONAL LAW — One arrested by federal oificers has no vested right to preliminary examination — Evidence of reason for mailing decoy letter held competent.
    333. CRIMINAL LAW — Instructions! held not erroneous, as lessening the burden of proof resting on the prosecution — Instructions not reviewable, in the absence of exceptions, or requests to charge — Judge may express opinion on the merits — Appellate Court cannot weigh the evidence.
   KNAPPEN, C. J.

Epitomized Opinion

Published Only In Ohio Daw Abstract

Roth was convicted under an indictm’ent charging him while employed in the U. S. postoifice at Cleveland, Ohio, for stealing and removing from a letter $3.50 in currency and coin with intent to divert the same to his own use. The indictment alleged that the letter and its contents had been entrusted to' defendant and had come into his possession as such postal employe, and that its contents were intended to be conveyed by mail. The letter was a decoy or test letter, the address being fictitious. The postal authorities who prepared the letter and caused it to be introduced into the postofliee did not expect or intend that the letter would be conveyed by mail- beyond the Cleveland postoifie, but intended that it should be by them intercepted if not stolen in that office. The accused prosecuted error, claiming certain errors during the trial. In sustaining the judgment of the lower court, the Court of Appeals, held:

Attorneys — P. J. Mulligan, for Roth; M. A. McCormack, for United States; both of Cleveland.

1. If postal officials have reasonable ground to believe that mail matter is being stolen by a postoffice employe, the use of a decoy letter to identify the culprit is proper.

2. Criminal Code 194 (Comp. St. 10364), making it an offense for anyone to steal, secrete, or embezzle mail matter, is applicable to' postal employes, and an indictment against an employe, though drawn under Section 195, may be treated as under Section 194.

3. The fact of the pendency of proceedings for preliminary examination of an accused before a commissioner does not prevent the consideration of the ease by the grand jury, and the presentment of an indictment by them for the same offense.

. The provision of Rev. St. 1014 (Comp. St. - — 74(, for proceeding against a person charged with an offense against the United States, “agreeably to the usual m'ode of process against offenders in such state,” applies only where the arrest is made by state authorities, and not to -procedure in the federal courts, and does not give an offender arrested by federal officers a vested right to a preliminary examination.

5. Where postal officials mailed a decoy letter, and later defendant, an employe, was arrested for stealing it and its contents, testimony of an inspector that thefts in the office had been reported to him, -and that it was in consequence of such information that the letter was mailed, held competent.

6. Instructions -held not erroneuos, as tending to relieve the prosecution of the burden of proving guilt beyond a reasonable doubt, with respect to an offirmative defense.

7. A charge is not reviewable as to matter which was not excepted to, and upon which no further instruction was requested.

8. A trial judge has the right to express his opinion on the merits, provided the jurors are clearly given to understand that they are to exercise their independent judgment.

9. The Appellate Court cannot determine the Weight of evidence.  