IN an BURKHARDT. 27
the post-office, and, as he was authorized to do, received certain mail
addressed to Banse. The postmaster asked him if Biederman sent for
-his mail also, and he said, "Yes;" whereupon he took from the ofiice Bied-
erman’s mail, in which was the letter in question. The testimony shows
that hesubsequently opened the letter, and, finding it contained a draft,
he indorsed the draft in such manner as enabled him to negotiate it,and,
upon gettingit cashed, appropriated the money.
, ~ The expression, "take the mail, or any letter or packet therefrom, or
from any post-oiiice * * * with or without the consent of the per-
. son having- custody thereof," contained in the second clause of section
5469, means awrongful, an unlawful, taking. If the accused had author- _
ity to take, and with such authority did take, Biederman’s mail from the
posbofdce, and, having thus obtained the letter in question, subsequently
opened it, and embezzled itscontents, such embezzlement was not an of-
fense against the United- States, though it would be against the state.
To constitute the offense made punishable by the clause in section 5469
referred to, the taking of the mail or of a letter from the post-ofiice must
be with criminal intent; not a taking by the authority of the person to
whom the letter is addressed, although there is asubsequent embezzle-
ment,·nor a taking by mistake, or with an innocent intent. U. S. v.
Pearce, 2 McLean, 14. "A.letter, packet, or other thing valuable, hav-
ing been committed to the post-ofiice department for carriage and deliv-
ery, if once parted with by the postmaster to.a person authorized tore-
ceive it, fromethat moment ceases alike to be under the control of the de- ,
partment, and the power and authority of the general government. The
sanction by the federal courts of the contrary doctrine would be danger-
—ous in itstendency, and subversive of reserved state authority. * * * *
When the functions of the department are exhausted by the proper de-
livery of mail matter, (once placed in its charge,) such mail matter is °
then beyond the reach and authority of any legislation of congress." U.
S. v. Sander, 6 McLean, 598; See, also, U. S. v. Dnlscoll, 1,L0w. 303.
The material question, then, is, in the matter under consideration,
does the testimony show that the prisoner, without authority, and there-
fore wrongfully, took the letter addressed to Biederman from the post-
office? The postmaster testines, as before stated, that he asked the ac-
cused, when he called for Banse’s mail, if Biederman sent for his mail
also, and the accused answered, "Yes;" and, as the two were getting their
mail in the same box, he delivered the mail, which consisted of some
newspapers and a letter, to the prisoner, supposing he had authority to
receive it. Biederman and Banse had been accustomed, as neighboring
farmers to get each other’s mail when one went to town and the other
did not. There is some testimony tending to show that there-is a cus-
tom prevailing among farmers in the neighborhood for one going to the
post-oHice for his own mail to get any mail that may be in the office for
his neighbor; but the postmaster testified that he did not remember that
» he ever, before the occasion in question, delivered Biederman’s mail to
the accused. Biederman swears that the accused had no authority
whatever from him to take his. mail from the post-otiice, and that, al-