Page:Federal Reporter, 1st Series, Volume 8.djvu/265

 UNITED STATES V. STONE. 251 �Word; The Boston, 1 Sumn. 329; Spurr v. Pearson, 1 Mason 104; Edwards v. Sherman, Gilp. 461; The Rising Sun^ 1 Ware, 279; Har- ley V. Gawley, 2 Sawy. 7; Cromwellv. Island City,, 1 Cliff. 221, where the word is used in the sense of "plunder." Also, that it is there used in the larger sense that we find it in our ordinary statutes against the wrongful appropriation of another's property. It is to be observed, too, that Pitman was a salvor, and the original taking was with that lawful intent, and yet he was convicted under this statute, which manifestly applies to all the cases of embezzlement and plunder by persons claiming salvage. At all events, the princi- ple of construction adopted there applies as well to this case, and I am content to extend it, if need be, to the factB we have here, rather than adopt the narrow construction insisted on by counsel for the defendant. Even a penal statute should not be so strictly construed as to defeat the obvions intention of the legislature. Am, Fw Co. v. V. S. 2 Pet. 3.58. The charge finds support, also, in the case of V. S. V. Coombs, 12 Pet. 72; U. S. v, Patmer, 3 Wh. 610; and U. S. V. Pirates, 5 Wh. 184. See, also, The Kensington, 1 Pet. Adm. 239; U. S. V. Davis, 5 Mason, 356, at p. 361, �The next objection taken to the charge is that the court unwarrant- ably amalgamated the counts in the indictment, by which the defend- ant was surprised and misled. It is said the court made a new indictment and departed from the pleading of the govemment in order to avoid trying the defendant upon an indictment for larceny. This only amounts to saying that the court refused to adopt the defendant's view of the statute restricting it to a larceny of lost goods on land, for it is almost too plain for argument that under our prac- tice the form of the pleading is immaterial if the substance of the averments is sufficient; and it requires some in jury to the defendant to enable him to take any advantage of a defect in form. Eev. St. § 1025. The indictment is misleading, no doubt, in chopping this offence, as it does, into pieces, by predicating one offence on "plunder, " another On "steal," and yet another on "destroy," and subdividing these again into separafce offences in relation to goods taken /rom the wreck and those helonging to it. The process may as well have been continiied by a like separation of the words "money, goods, merchan- dise, or other affects;" or, still further, of the words "in distress, wrecked, lost, stranded, or cast away upon the sea, or upon any reef, shoal, bank," etc., etc. The court admits that it did not de- toct "this defect, if it be one, until it came to consider the charge to be given, and the request of the defendant to charge the jury ��� �