28 FEDERAL BEPORTER.
though the prisoner had been for a short time in his employment before
he entered the service of Banse, he had never been authorized by him
-to receive his mail at the post-office, and never in fact got his mail while
he was in his service. Biederman also testifies that, on the day the let-
ter was taken from the postsotiice, he met the accused on the road re-
turning home, and asked him if he had his (Biederman’s) mail. This
is a circumstance which counsel for the accused claims points to the
conclusion that Biederman expected the prisoner to bring his mail to _
him from the office; but Biederman says, further, that he did not ex-
pect the accused to bring him his mail, but that as he met him coming
from town, and saw newspapers in his pocket which evidently came
from the post-office, he asked him if he had any mail for him.
This is the substance of the testimony bearing on the vital point inthe
case. The accusedrwas not sworn, and did not give his version of the
transaction. It may be that the alleged want of authority is not conclu-
sively shown; that is, beyond all doubt. But I do not understand that the
judge, who is called on in such a case to determine whetherhe will order a
~ removal of the accused to the district where the alleged offense was com-
mitted, is required to decide absolutely the question of his guilt or inno-
cence, or is authorized to discharge him if there be some doubt of guilt; al-
though, undoubtedly, in a case where it was clearly proven that the accused
· had not committed the offense charged, it would be the duty of the judge
to order his discharge. ` If a case of probable guilt is made, then it is in-
- cumbent upon the judge to issue a warrant for the removal of the pris-
oner to the proper district, where a full investigation of all the facts and
circumstances may be had , and where at jury may determine, upon all
` the evidence, the question of guilt or innocence. The identity of the
prisoner, and his probable commission of an offense under section 5469,
T are here shown, and the case is therefore one in which a warrant of re-
moval should issue. » _
. U. S. v. Parsons, 2 Blatchf.. 104, was cited by counsel for the accused
as an authority in support of his view that no offensewas committed
within the meaning of section 5469. The facts in that case were that a
letter mailed in Boston reached the post-oflice in New York. It was
taken by a lettencarrier for delivery, and was given by him to a person
in the house of the defendant; the defendant not being present, and not
participating in the delivery. That person subsequently, and at a dif-
ferent place, delivered the letter to the defendant, who opened it, and
embezzled the money inclosed. The letter was not intended for the de-
fendant, but for another person bearing the same name; and it did not
come into the possession of the defendant within the view of the letter-
- carrier, or with his knowledge, or while he remained at the place where
he left the letter. · Upon this state of facts, it was held that the defend-
ant was not liable to prosecution for the embezzlement of the contents of
the letter, under the post-ofhce act of the United States, for the reason
that there was no wrongful intent on the part of the person who received
the letter from the carrier. He supposed the letter belonged to the de-
fendant; and afterwards delivered it to him at a different place, as being