Page:Federal Reporter, 1st Series, Volume 1.djvu/794

 786 FEDERAL REPORTER. �stealing a valuable thing out of a letter in postal custody, and also a proseoution for embezzling the letter itself — two prosecutions in respect to the same letter, either against the same person, or against one person for embezzling the letter, and against another person for taking the valuable thing out of it, or stealing that thing, if the facts should justify the two proeeedings. If prosecuting for the embezzlement, the pleader would allege the stealing by way of description only. If prosecuting for the taking or stealing, he -would allege the embezzlement of the letter by the accused or some other person merely by way of description. �In the case at bar the government prosecutes only for the embezzlement of the letter, and alleges the stealing or taking of its contents only by way of description. Accordingly, the information, after charging the embezzlement, goes on by words of description to set forth that the letter was such aa is defined by the statute ; and, amongst other things, that it contained two treasury notes, and that these notes were taken out of the letter and stolen. These latter words are not employed in the technical form usual in charging a larceny, because the information is not for the offence of larceny, but distinctly and only for that of embezzlement ; and the tak- ing or stealing of the notes is alleged by way of description for the purpose of bringing the offence fuUy within the terms of definition employed by the statute. If it were, indeed, an information for the common law offence of larceny, (an offence rarely prosecuted in the United States courts,) then it would, no doubt, be defective in not alleging an adverse ownership of the two treasury notes in some person other than thô accused. �Having premised this much, I corne now to consider par- ticularly the grounds on which the motion in arrest of judg- ment is founded. �1. It being an information for embezzlement, this offence does not faU within the provisions of the fifth amendment to the national constitution. �It has been often held that when terms of the criminal law are used in that constitution they are intended in their ��� �