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plieci with. The ground of objecting to the fourth count was, in substance, the first ground interposed to the third, applied to the averments of the fourth. No specific intent is involved in either of the offenses charged in the third and fourth counts. The statute makes the failure to remit, or the failure or refusal to surrender, on demand of an authorized agent of the Postmaster General, post office funds the offense of embezzlement. The failure must be willful, and it is averred in each count to have been done "willfully, unlawfully, and feloniously.” The word "willful” implies on the part of a defendant knowledge and a purpose to do wrong. Its use was sufficient where the act constituting the offense was not required to be done with a specific intent. Felton v. United States, 96 U. S. 699, 24 L. Ed. 875; Potter v. United States, 155 U. S. 438, 15 Sup. Ct. 144, 39 L. Ed. 214.

[3,4] The averments of the third count that Shreveport "was then and there the designated depository of the said post office at Shongaloo, La.," and of the fourth count, that the defendant failed to turn over to the post office inspector “upon demand and order of the Postmaster General, made through the said A. C. Caldwell, post office inspector, the said A. C. Caldwell, post office inspector, being then and there a duly authorized officer and agent of the Postmaster General," are good against the objection made to them that they do not say by what means the depository was designated and the post office inspector made the authorized agent of the department. The manner in which or the means by which these things were done are matters of evidence rather than of averment. The defendant could have obtained a more particular description by demanding a bill of particulars. No prejudice could have resulted to the defendant from the alleged imperfect averment, and, if imperfect, it was cured by section 1025 of Revised Statutes (Comp. St. $ 1691), especially when, as in this case, objection was first interposed upon the trial of the cause. Benson v. United States, 240 Fed. 413, 153 C. C. A. 339: Evans v. United States, 153 U. S. 590, 14 Sup. Ct. 934, 38 L. Ed. 830.

[5] The plaintiff in error further insists that the government's proof failed to show that the post office at Shreveport was designated as a depository for the post office at Shongaloo for money order funds, and that Post Office Inspector Caldwell was authorized by law, or by regulation or order of the Postmaster General to demand of the defendant that he turn over to him the money order funds in his possession as postmaster.

The oral testimony of the inspector that the Shreveport post office was the designated depository for money order funds for the Shongaloo post office, together with the fact that the defendant himself had habitually made remittances of money order funds to Shreveport during his incumbency, was evidence sufficient for the submission of that issue to the jury.

[6] The post office inspector's authority to demand and receive money order funds is a matter of post office departmental rules and regulations, of which the courts take judicial notice. Caha v. United States, 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415. In addition, the defendant recognized the right of Caldwell to make the demand, by pay

ing to him, in response to the demand that portion of money order funds he then had on hand.

17-9] The plaintiff in error also relies upon numerous exceptions to the admission and rejection of evidence. He complains that the court permitted Inspector Caldwell to testify orally to the fact that he was a post office inspector at the time he made the demand. We think it was competent for him to testify to this fact, and that the production of his commission was not necessary. His testimony established at least his character as a de facto officer. Proof of previous failures on the part of defendant to remit, as required by law, was competent on the question of intent, which was involved at least in the second count, which charged embezzlement by conversion to his own use of the money order funds of which he was shown to be short. For the same reason, proof that he had issued money orders to himself to pay for whisky, without paying for them, was competent. Under the counts under which he was convicted, proof of an amount due the government in that way, and not accounted for by him, would be a shortage, on which the statutory embezzlement could be predicated. It was not essential for the government to show under those counts that he had actually received the money he failed to account for.

(10, 11] The defendant also contends that the money received by him on C. O. D. parcel post packages, to be remitted to the sender, did not constitute money order funds, and could not be considered by the jury in determining the shortage. The evidence showed that the post office regulations provided that the C. O. D. tags should be treated as applications for money orders, and that the delivering postmaster should fill out a money order on the sending post office to remit the amount collected from the addressee. The department treated such moneys as money order funds, and they clearly might be properly so treated, and this fixed their character as such. Again, the funds of this character were but a small part of the conceded balance due from defendant to the government, and not explained by him, and the ruling could have made no difference to the defendant on whom no fine was imposed.

[12] It is also objected that the government was permitted to fortify the credibility of its witness Caldwell, the post office inspector, by evidence of his good character. The evidence was first offered in rebuttal. The defendant, testifying in his own behalf, had admitted signing a written confession, but had stated that he did so at the instance of Caldwell, who knew it to contain untrue statements, and who promised defendant immunity if he signed it. This testimony of defendant tended to discredit Caldwell in a way that justified the government in proving his good character, in rebuttal of it.

(13, 14] The plaintiff in error excepted to portions of the court's general charge to the jury. The court charged the jury that the introduction of the transcript of the account of the defendant with the Auditor for the Post Office Department, showing a balance due the government from the defendant, made it incumbent on the defendant to explain the shortage. This is the effect given the transcript by section 225, as we construe it, especially when applied to the offenses charged under the

third and fourth counts of the indictment, under which alone the defendant was convicted. It was competent for Congress to so enact. The defendant was left the opportunity of denying or explaining away the prima facie effect of the transcript. The defendant also excepted to the court's charge upon the effect of the interest of the defendant upon the weight of his testimony. The charge was in the language of the Supreme Court in the case of Reagan v. United States, 157 U. S. 301, 15 Sup. Ct. 610, 39 L. Ed. 709, and was justified by the attitude of the defendant in offering himself as a witness in his own behalf. The other exceptions to the general charge present questions already passed upon under previous exceptions.

[15] The plaintiff in error requested a number of special charges. We have examined them in detail. Many of them present questions already decided adversely to plaintiff in error. None of them is sufficient to work a reversal of the judgment. The only one that requires specific mention was a direction to the jury that they could only convict the defendant upon one of the three counts of the indictment submitted to them. All the counts were based on the same shortage. This, however, would not prevent the jury from convicting on all three, since the same shortage might constitute all three offenses. It might be that the defendant should receive punishment under but one of the two counts on which he was convicted, both being based on the same criminal act. The record does not show that he was sentenced to a term in excess of what would be permissible, had the conviction been upon one count alone.

We find no reversible error in the record, and the judgment is affirmed.

Affirmed.

MICHIGAN MUT. LIFE INS. CO. V. OLIVER.*

(Circuit Court of Appeals, Fifth Circuit.

March 6, 1919.)

No. 3152.

5

1. INSURANCE 186(5)-LIFE INSURANCE_PAYMENT OF PREMIUMS-MONEY

ADVANCED BY AGENT.

Receipt by the insurer in a life policy from its agent of the full first premium, less the agent's commission, and its retention, operated as full payment of the premium, although the payment was made by the agent,

who took the note of insured for the amount. 2. EVIDENCE W123(1)-STATEMENT TO PHYSICIAN AS PART OF RES GESTÆ.

Testimony of a physician that he was called by telephone to the house of insured by some one, who stated that insured had "just killed himself," held properly excluded, as not part of the res gestæ; it not appearing

that the sender of the inessage was a witness to the killing. 3. EVIDENCE 471(29)---CONCLUSION-UNDERSTANDING AS TO AGREEMENT.

Testimony of the agent who took an application for life insurance, and who delivered the policy, taking the note of insured for the first premium, that it was "understood" that he should remit the money for the premium, held admissible as equivalent to a statement that such was the agreement, and not of a conclusion. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Certiorari denied 249 U. S. 39 Sup. Ct. 494, 63 L. Ed.

4. APPEAL AND ERROR Om 1060(1)-FARMLESS ERROR-ARGUMENT BY COUNSEL.

Statements outside the record by counsel for defendant in an action on a life policy, intended to convey to the jury the idea that it was the local belief that insured committed suicide, and counter statements by

counsel for plaintiff, held improper argument, but not prejudicial. 5. TRIAL 117-ARGUMENT OF COUNSEL READING OF OPINION IN ANOTHER

CASE.

Permitting the reading by counsel to the court in the presence of the jury of the opinion in another case bearing upon the law of the case ou trial held not error.

In Error to the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge.

Action at law by Ann Hope Oliver, administratrix of the estate of William S. Oliver, against the Michigan Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Forney Johnston and W. R. C. Cocke, both of Birmingham, Ala., for plaintiff in error.

T. M. Stevens, of Mobile, Ala., Page & McMillan, of Brewton, Ala., and Stevens, McCorvey & McLeod, of Mobile, Ala., for defendant in error.

Before WALKER and BATTS, Circuit Judges, and BEVERLY D. EVANS, District Judge.

BEVERLY D. EVANS, District Judge. The action was by the beneficiary of an insurance policy to recover for the death of the insured. Several pleas were stricken by the court on demurrer, and the case was tried on the issue raised by the plea averring that the insured came to his death by suicide while sane. The verdict was for the plaintiff.

[1] 1. The assignments of error on the order sustaining the demurrer to the pleas, which were stricken, are without merit. The demurrer to the replication raised the point as to the sufficiency of its allegations after amendment. The replication alleged that the policy was solicited and delivered by one Mason, acting as agent of the insurer; the insured gave his note to Mason for the first premium on the policy; this note was given to Mason individually, and it was understood between the insured and Mason that the latter would pay to the insurer the amount to which the insurer was entitled for the first premium, and that Mason, after delivery of the policy, and receiving the note, and long prior to the death of the insured, paid to the insurer, or to its agents duly authorized to receive same, the first premium upon the policy, less Mason's commission for writting the policy, and that the money so paid was received and retained by the insurer, or its duly authorized agent. It is insisted that the allegations are in sufficient to show the payment of the full premium to the insurer, When the insurer received from its agent the full premium, less the amount claimed by its agent as commissions, and retained the money under those circumstances, the transaction operated as a payment of the whole premium.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(2] 2. The insured, William S. Oliver, was found dead early in the morning of Monday, July 17, 1916, in the garden in the rear of his residence. At the time of his death he was tax collector of Conecuh county, and was short in his accounts in excess of $3,000. He was given by the authorities until Tuesday, July 18th, to settle this shortage. He retired as usual on Sunday night. His wife did not discover his absence from the house until about half past 5 o'clock the next morning. She found his dead body in the garden, lying near a small tree; his feet being about six feet from it. His gun was lying alongside of his body, with the muzzle near his head. The top of his head was blown off. From the spot where the body lay were found tracks, as of a man running from the garden. A short distance off was a sack containing a watermelon and 13 cents. There was testimony that the insured had said to neighbors that theives were stealing his watermelons, growing in the garden where his body was found. Two reports of a gun were heard that night very close together, the first being louder than the second.

The defendant called Dr. Betts as a witness, and asked him:
“How were you summoned, and state what was said to you and how ?!"

His answer was:

“The phone rang, and the message, as near as I can remember, was, 'I want you to come down and see Mrs. Oliver; Mr. Oliver has just killed himself.'"

The answer to the question was excluded. The witness in his testimony further said that on receipt of the telephone message he went to see Mrs. Oliver and found her in bed, and shortly afterwards he saw Mr. Oliver's body. He arrived at the place about 6 o'clock, and the body had not been removed from the garden.

It is argued that the physician's answer was admissible as part of the res gestæ. We do not think so. Its purpose was to establish the defense of suicide by a declaration of a person at the residence of the deceased. The sender of the message, whether Mrs. Oliver or another, was not shown to be a witness to the circumstances eventuating in Mr. Oliver's death. The declaration sought to be proven was not of a percipient witness to the act, coincident in point of time with the principal fact, tending to explain it. It is a declaration of a person necessarily acting on information obtained after the happening of the principal fact. If the information was the result of an investigation of physical facts, it would be only an inference drawn from those facts. If the information imparted was derived from others, it would be hearsay. So in any event the testimony was properly excluded.

[3] 3. The agent of the defendant, Mr. Mason, testified that the insured made the application to him, and on this application the policy was issued. The witness took the note of the insured for the amount of the premium when the policy was delivered. Witness paid to the defendant the amount of the premium, less his commissions; "the company took that on this particular policy." The witness was asked if he had agreed with Mr. Oliver that he would remit the money necessary to pay the premium, and answered that it

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