§ 1092. Upon the trial of an indictment for perjury in swearing to the agreement of the fishermen in order to obtain a fishing bounty, the jury were instructed that in or ler to make the offense, under the statute, the defendant must have sworn to the declaration which, at the time, he was aware was false; and this ht be either by swearing to a fact which he knew was not true, or by swearing to his knowledge of the fact when he knew he had no such knowledge; that rash swearing was not necessarily perjury; that the oath must have been taken to deceive the officer and thereby to get the bounty; and that it was not necessary that it should have been done to defraud the government. United States v. Atkins,* i Spr., 553.

§ 1093. Upon an indictment for taking a false oath to obtain the fishing bounty, under the act of July 29, 1813, it was held that section 7 of this act did not require an oath as to the agreement between the fisherman, but only as to the certificate described in the section. United States v. Nickerson,* 1 Spr., 232.

§ 1094. By the statute of July 29, 1813, congress having prescribed expressly what kind of proof of compliance with the requirements of that act, for obtaining the fishing bounty, which shall be necessary to entitle the owner of a fishing vessel to claim the bounty, and having directed what papers shall be produced and which of them shall be sworn to, it is not competent for any officer to require other oaths to support such claim, so as to make the false taking of such oaths legally criminal. Ibid.

§ 1035. Under act of 1820.- The pension act of 1820, ch. 50, § 2, declaring that "any person who shall swear or affirm falsely in the premises, and be thereof convicted, shall suffer as for wilful and corrupt perjury," does not make such false swearing a technical perjury, but only refers to it for the purpose of affixing the same punishment. United States v. Elliot,* 3 Mason, 155.

§ 1096. In bankruptcy. The act of 1825 is an act defining the crime of perjury generally, and is not confined in its operations to acts passed anterior to that time. So it is held that false swearing to a schedule in bankruptcy is perjury. United States v. Nihols,* 4 McL., 23.

§ 1097. The bankrupt court is always open, and false swearing to a petition must be considered as having been done in court. Ibid.

§ 1098. The act of December 19, 1803, repealing the bankrupt law, contains no provision reserving jurisdiction of perjuries already committed against that law. Anonymous,* 1 Wash., 84.

§ 1099. A false oath taken in proceedings under the bankrupt law cannot be punished as perjury under section 18 of the general criminal law of the United States, punishing perjuries committed in judicial proceedings whether orally or by deposition. Nor is such a false oath punishable by the common law. The common law description of the offense of perjury is a false oath taken in some judicial proceeding, in a matter material to the issue. Ibid..

§ 1100. It is perjury under the bankrupt law for a bankrupt to swear, in bankruptcy proceedings, that he is the owner of a brig, when he has received a bill of sale of the brig for the purpose of covering the property under his name, when it is really the property of another. Ibid.

§ 1101. A false statement in a sworn schedule in a proceeding in bankruptcy does not render the party liable to the penalties of perjury, where he acted under advice of counsel, and had no fraudulent inteat. United States v. Conner, * 3 McL, 573.

XV. RECEIVING STOLEN PROPERTY.

SUMMARY-Variance as to the person from whom the property was received, § 1102.- Property recovered by owner, § 1103.- Property stolen from the mail, 33 1101-1103.

§ 1102. Where an indictment for receiving stolen property charges that the defendant received it from the thief, and the proof shows that he received it from another person, it is a fatal variance. United States v. De Bare, §§ 1107, 1109.

§ 1103. Where it is shown in an indictment for receiving stolen property that before the defendant received the property it had been recovered and had lost its character as stolen property by passing into the hands of the owner or his agents, the prosecution must fail. Ibid.

§ 1104. To constitute the guilty receiving of property stolen from the mail, as defined and punished by section 5470, Revised Statutes, it must appear that the defendant voluntarily took the property into his control and possession, or voluntarily had it in his possession and controi, with intent to prevent the larceny or the thief from being discovered, or the property from being reclaimed by the true owner or for his benefit; but it need not appear that he re

eeived it with intent to make any gain or profit thereby to himself. A guilty concealing also implies that the defendant voluntarily secreted the property or put it out of the way, or in some manner disposed of it with like intent as in the case of receiving. To aid in concealing the stolen property the defendant must do some act with intent to assist the thief or other person, then in the guilty possession of the property, in concealing it, or furtively dispos ing of it, with a like intent as in the case of receiving. United States v. Montgomery, $1103-1117. See $ 916-948.

§1105. The possession by the defendant of gold coin, received at the mint in exchange for gold dust stolen from the mail, will not support an indictment under section 5170, Revised Satutes, for receiving or concealing, or aiding in concealing, property, knowing that it had been stolen from the mail. Ibid.

$1106. A defendant cannot be convicted under section 5470, Revised Statutes, upon proof of receiving, or concealing, or aiding in concealing, property stolen from the mail, unk ss the acts were done within the judicial district in which the trial is being had. Ibid.

UNITED STATES v. DE BARE.

(District Court, Eastern District of Wisconsin: 6 Bissell, 358-363. 1875.)

STATEMENT OF FACTS.-The accused was indicted for receiving postage stamps, knowing them to have been stolen. The stamps were stolen by one Crawford, who put them into the express office directed to the defendant. Crawford was arrested at Quincy, Illinois, and on a written order from him the stamps were delivered to the Quincy postmaster. Sabsequently, under orders from the postoffice department, the postmaster permitted the stamps to go forward to defendant. The indictment charged that the defendant received the stamps from Crawford.

$1107. Variance as to the person from whom defendunt received the goods. Opinion by DYER, J.

Careful consideration of the question has confirmed me in the opinion that the instruction given to the jury was right. Undoubtedly it is not, in all cases, essential that an indictment against a receiver should allege by whom the property was stolen. A party may be indicted for receiving goods stolen by persons unknown. In a case where an indictment was objected to because it did not ascertain the principal thief, and did not, therefore, state to whom in particular the prisoner was accessory, it was held good; but "where the principal, however, is known, it seems proper to state it according to the truth." 2 East's Crown Law, 781. It is laid down in the books as a settled principle, that, if an indictment allege that the goods were received from the thief, it must be proved that they were received from the thief, and if it appear that the thief gave them to a person from whom the accused received them, it is a fatal variance. In support of this principle, Arundel's Case, 1 Lewis, 115, cited by defendant's counsel on this motion, is the leading authority. The prisoner was indicted for receiving stolen goods, and the indictment alleged that he received them from the person who stole them, and that this person was a certain ill-disposed person to the jurors unknown. It was proved that the person who stole the property handed it to J. S., and that J. S. delivered it to the prisoner; and Parke, J., held that on this indictment it was necessary to prove that the prisoner received the property from the person who actually stole it, and he would not allow it to go to the jury to say whether or not the person from whom he was proved to have received it was an innocent agent of the thief.

Now in the case at bar the indictment charges that the defendant received the postage stamps from Crawford. To convict, the proof should conform to the charge. If the proof is that the defendant received the stamps from the

Quincy postmaster and not from Crawford, the variance is fatal. Crawford was the principal felon. After arrest, as we have seen, the stamps passed into the possession of the Quincy postmaster, who took them from the express office, and subsequently, by direction of the department, forwarded them to the consignee. There was no relation of principal and agent between Crawford and the postmaster. The former had originally authorized the express company to carry and deliver the stamps to the defendant. By his order in writing, given to the postmaster, he withdrew that authority, ceased to be a party to the contract of transportation, and surrendered the stamps to the postmaster. The subsequent re-deposit of the stamps in the express office was the act of the postmaster under direction of the department, and I think the case is directly within the principle of Arundel's Case, before cited. I am convinced, therefore, that it would not have been error to have instructed the jury that the variance between the allegation in the indictment and the proof is fatal to a conviction.

1108. To support the indictment the property must be stolen property, and not have lost its character by passing into the hands of the owner before its reception by the defendant.

If there be any doubt upon the point thus far discussed, there can be none, I think, concerning the second ground urged in support of this motion. The ownership of these stamps was in the United States. The Quincy postmaster was the agent of the owner. When Crawford surrendered them to this agent they were reclaimed property that had been stolen, but their character as stolen property ceased in the hands of the postmaster, so far as the subsequent receiver was concerned. The moral turpitude of a receiver under such circumstances may be as great as in case the property comes directly from the hands of the thief, because the criminal intent on his part exists equally in both cases. But to create the offense which the law punishes, the property, when received, must, in fact, and in a legal sense, be stolen property. If these stamps were received by the defendant, they did not, when received, upon the proof made, bear this character. They had been captured from the thief by the owner, and the act of forwarding them to the alleged receiver was the act of the owner.

I regard this point conclusively settled upon authority. In State v. Ives, 13 Ired., 338, it was held that an indictment for receiving stolen goods must aver from whom the goods were received, so as to show that the person charged received them from the principal felon. If received from any other person the statute does not apply. In The Queen v. Schmidt, 1 Crown L. C. Cas., 15, the case was this: Four thieves stole goods from the custody of a railway company, and afterwards sent them in a parcel by the same company's line addressed to the prisoner. During the transit the theft was discovered, and on the arrival of the parcel at the station for its delivery, a policeman in the employ of the company opened it and then returned it to the porter, whose duty it was to deliver it with instructions to keep it until further orders. On the following day the policeman directed the porter to take the parcel to its address, where it was received by the prisoner, who was afterwards convicted of receiving the goods knowing them to be stolen, upon an indictment which laid the property in the goods in the railway company. Held, that the goods had got back into the possession of the owner so as to be no longer stolen goods, and that the conviction was wrong.

The case of Regina v. Lyons, 41 Eng. Com. L., 122, was cited by counsel for

the prosecution in support of a conviction in this case. The report of the case is meager, but it appears that a brass weight had been stolen by a lad in the employ of the prosecutors; and it having been taken from him by another servant in the presence of one of the prosecutors, it was restored to the lad again, in order that he might take it for sale to the house of the prisoner, where he had been in the habit of selling similar articles before. The lad took it and sold it for 61. The point was made that as the property had been restored to the possession of the owner it could not afterwards be considered as stolen property. Coleridge, J., said that for the purposes of the day he should consider the evidence sufficient to sustain the indictment, but would take a note of the objection. The prisoner was convicted and sentenced to transportation, and no change was subsequently made in the judgment of the court.

But this case of Regina v. Lyons is expressly overruled in the case of Regina v. Dolan, 29 Eng. L. & Eq., 533, Lord Campbell, C. J., delivering a judgment in which Justices Coleridge, Cresswell, Platt and Williams concur. Lord Campbell says: "With regard to The Queen v. Lyons, I think that the facts cannot be accurately stated. But if they be, I must say that I cannot concur with that decision, and I think that it ought not to be acted upon." Of his previous decision in that case, Coleridge, J., says: "Having no recollection of the case. of Queen v. Lyons, I cannot take upon myself to say it is wrongly reported. But if it is not, I am bound to say that I think I made a great mistake." Motion for a new trial granted.

UNITED STATES v. MONTGOMERY.

(District Court for Oregon: 3 Sawyer, 514-553. 1875.)

Charge by DEADY, J.

STATEMENT OF FACTS.-The indictment in this case is founded upon section 5470 of the Revised Statutes, which, among other things, provides that any person who shall receive or conceal, or aid in concealing, any article of value, knowing the same to have been stolen or embezzled from the mail of the United States, shall be punishable by a fine of not more than $2,000, and by imprisonment at hard labor not more than five years. The reason and necessity of such a statute is apparent. The post office is one of the principal departments of the government. Upon the security and celerity with which the mails are carried and delivered throughout the country depends to a great extent the preservation of the business and social relations of the people. Up on the long-established maxim that "A receiver is as bad as a thief," the sta tute has also provided for the punishment of persons who assist others in stealing or embezzling from the mails by receiving the stolen property, or concealing it, or aiding in concealing it, substantially in the same manner as the thief himself.

§ 1109. Receiving, concealing, and aiding in concealing, etc., in an indictment under section 5479, Revised Statutes, constitute one crime.

By this indictment the defendant is accused, in different modes or counts, of receiving, concealing, and aiding in the concealing, of three cans of gold dust, of the aggregate value of $1,830, the same having been stolen from the mails. of the United States, to the knowledge of the defendant, in October, 1874, near Canyonville. But these seventeen counts only charge one crime, that of receiving, concealing, and aiding in the concealing, of the stolen dust, under the circumstances stated, and the proof of receiving, concealing, or aiding in con

cealing, is sufficient to establish the guilt of the defendant. To this indictment the defendant has pleaded not guilty, and the effect of this plea is to put in issue or controvert all the material allegations of the indictment. This being so, the burden of proof is upon the United States to prove to your satisfaction each of such allegations, before it can ask a verdict of guilty at your hands. $1110. A defendant indicted with another person for receiving, etc., may be tried separately when the other party has been discharged upon a plea of autrefo's convict.

The defendant stands before you as a person charged with the commission of a grave crime, and the fact that she is also a woman and a mother does not change the rules of law or the duties of jurors in such cases. In determining the question of her guilt or innocence, you are not to be swerved by any sympathy for her sex or condition, but you are to say truly whether she is guilty or not as charged, irrespective of such considerations or the consequences to her or others that may follow your verdict. Of course, the fact that the defendant is a woman may be more or less material in judging of her conduct and motives in fleeing the country as she did with Harmison, the party who appears to have stolen this dust and had it in his possession. In considering their relations and intimacy, upon the question of whether this stolen dust was received or concealed by her, or her aid, you may properly consider the fact. of the difference in their sex-that they were traveling and cohabiting together as man and wife, with trunks and other traveling gear in common. The indictment charges that the defendant and Harmison both committed this crime, without alleging whether it was done jointly or severally, and counsel for defendant now insists that neither party can be found guilty of a separate receiving under such a charge. Waiving the consideration of that precise question, as not being material to the present aspect of the case, the fact being that Iarmison has been discharged from this indictment upon his plea of autrefois convict, the defendant is now being tried upon it alone, and may be found guilty under it of committing the crime therein charged, separately.

§ 1111. What constitutes a guilty receiving, etc., of stolen property under section 5479, Revised Statutes.

Before the defendant can be found guilty of the charge in the indictment the United States must show that the gold dust in question was stolen or embezzled from its mails. The record of Harmison's conviction in this court of the crime of stealing three similar cans of gold dust from the mails has been introduced in evidence. This is sufficient evidence of the fact until the contrary appears, it being also shown or proven to your satisfaction that the property mentioned in the two indictments is the same. It must also be shown that the defendant, knowing it to have been so stolen or embezzled, received it from the thief, or concealed, or aided the thief or some one else in concealing it. To constitute a guilty receiving of stolen property by the defendant, it must appear that sh voluntarily took it into her control and possession, or voluntarily had it in her possession and control, with intent to prevent the larceny or the thief from being discovered, or the property from being reclaimed by the true owner or for his benefit; but it need not appear that she received it with intent to make any gain or profit thereby to herself.

§ 1112. The possession of goods for which the stolen property was exchanged will not support the indictment for receiving, etc.

A guilty concealing also implies that the defendant voluntarily secreted this dust, or put it out of the way, or in some manner disposed of it with a like in