Opinion
March 21, 1952.
July 17, 1952.
Criminal law — Larceny — Theft of letter from mailbox or sack — Jurisdiction of state courts.
The theft of a letter from a mailbox or sack in a state constitutes the common law offense of larceny and may be prosecuted in the state courts.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 81, Oct. T., 1952, from order of Court of Quarter Sessions of Philadelphia County, dismissing petition for writ of habeas corpus, in case of Commonwealth of Pennsylvania ex rel. Harry R. O'Brien v. Cornelius J. Burke, Warden, Eastern State Penitentiary. Order affirmed.
Habeas corpus proceeding.
The facts are stated in the opinion by BOK, P.J., of the court below as follows:
This is a petition for a writ of habeas corpus, in forma pauperis.
The relator alleges that he pleaded guilty to three bills of indictment, Nos. 1205, 1206, and 1207 of September Sessions, 1950, and was sentenced on bill 1205 to the Eastern State Penitentiary for a term of 2 1/2 to 5 years. This bill charges him with larceny. The others charge him with fraudulently making, uttering, and publishing a written instrument, and relator was not sentenced on these bills.
His contention is that the theft of a letter from a mailbox, or sack, was exclusively a Federal offense and that the State had no jurisdiction to try him, citing U.S. v. Eddy, 25 Fed. Cas. No. 15024 (1858). This case did not involve an issue between State and Federal jurisdiction: the issue was whether a state sheriff could be indicted for stealing a prisoner's letter from the mail or whether his state office gave him authority to do what he did. The quotation from this case, given in relator's brief, is therefore dictum.
There is, however, even better dictum to the contrary. In U.S. v. Amy, Fed. Cas. No. 14445 (1859), defendant was convicted in Federal Court for stealing mail from the post office. Chief Justice TANEY, sitting on circuit, said: ". . . . . as these letters were stolen in Virginia, the party might undoubtedly have been punished in the state tribunals, according to the laws of the state, without any reference to the post-office or the act of Congress; because from the nature of our government, the same act may be an offense against the laws of the United States and also of a state and be punishable in both."
It is of course elementary that larceny is a common-law offense (see Commonwealth v. Doran, 145 Pa. Super. 173 (1941)). As such, it can be prosecuted in the state courts. This was held directly in Commonwealth v. Luberg, 94 Pa. 85 (1880), and a distinction was made between forgery, a common-law offense, and embezzlement, which is not a common-law offense. Commonwealth ex rel. Torrey v. Ketner, 92 Pa. 372 (1880), involved embezzlement and is referred to, for distinction, in the Luberg case, which involved forgery by a teller of a national bank.
It might be noted in passing that upon being arrested, relator asserted that the letters from which he took the checks had fallen to the floor underneath the mail receptacle.
The petition is refused.
Defendant appealed.
Harry R. O'Brien, appellant, in propria persona, submitted a brief.
Richardson Dilworth, District Attorney, Michael von Moschzisker, First Assistant District Attorney, Thomas M. Reed and John T. Curtin, Assistant District Attorneys, for appellee, submitted a brief.
Submitted March 21, 1952.
The order is affirmed on the opinion of President Judge BOK.