discharged, whichever first happens; and in case of vessels making foreign voyages, or from a port on the Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens; and in all cases the seaman shall be entitled to be paid at the time of his discharge on account of wages a sum equal to one-third part of the balance due him. * * Section 4530: "Every seaman on a vessel of the United States shall be entitled to receive on demand from the master of the vessel to which he belongs one-half part of the wages which he shall have then earned at every port where such vessel, after the voyage has been commenced, shall load or deliver cargo before the voyage is ended and all stipulations in the contract to the contrary shall be void: Provided, such a demand shall not be made before the expiration of, nor oftener than once in five days. Any failure on the part of the master to comply with this demand shall release the seaman from his contract and he shall be entitled to full payment of wages earned. And when the voyage is ended every such seaman shall be entitled to the remainder of the wages which shall then be due him, as provided in section forty-five hundred and twenty-nine of the Revised Statutes. Comp. St. §§ 8320, 8322. Section 4529, so far as it affects this case, provides that the master or owner of any vessel shall pay to every seaman his full wages "in case of vessels making foreign voyages, within 24 hours after the cargo has been discharged." The Cubadist had made a foreign voyage and had discharged her cargo at Mobile, and the situation created by the Seamen's Act, if literally construed, had arisen. The appellants contend for a literal construction. The appellees contend that, construing the act in its entirety, it is evident that the words of section 4529, "within 24 hours after the cargo has been discharged," refer to a discharge of cargo upon the completion of the voyage for which the seamen shipped. This was the holding of the District Judge, and we concur in it. Section 4529 and section 4530 should be construed together. The former provides for the payment of full wages to seamen; the latter, for half then earned wages at any port, touched by the ship, where cargo is received or discharged. The former applies to full payment on completion of the voyage, or the termination of the shipping articles, or the discharge of the seaman; the latter to partial payments to be made during the progress of the voyage. Section 4530 provides for the payment of half then earned wages "at every port where such vessel, after the voyage has been commenced, shall load or deliver cargo before the voyage is ended." During the progress of the voyage, full wages can only be demanded if half then earned wages are wrongfully denied. The section then reads as follows: "And when the voyage is ended every such seaman shall be entitled to the remainder of the wages which shall then be due him, as provided in section 4529 of the Revised Statutes." It is clear from this reference to section 4529 that Congress intended that section to cover only the payment of full wages due, on the completion of the voyage or discharge of the seaman, and section 4930 to cover all payments to be made during the progress of the voyage. The use of the words, in case of foreign voyages, "after the cargo has been discharged," instead of "when the voyage is ended," may be at tributed to their former use in the Revised Statutes, when a necessity for retaining seamen, not only until completion of the voyage, but until after discharge of cargo, existed. However this may be, reading sections 4529 and 4530 together, they form a complete system only if we attribute to section 4529 the function of regulation of final payments in full upon completion of the voyage or discharge of the seaman, and to section 4530 the regulation of payments arising out of situations that occur during the progress of and before the time for final settlement between the seaman and the shipowner, either because of the ending of the voyage for which he shipped or the discharge of the seaman, if that first occurred. To bring the two sections into harmonious relation with each other, it is necessary to give to the words "after the cargo has been discharged" the meaning of a discharge upon the completion of the voyage for which the seaman shipped. There might be many complete discharges of cargo during the progress of a single voyage. In such cases, section 4530 and section 4529 would both apply, if section 4529 be given the construction contended for by appellants, and it would then come into direct conflict with section 4530. Section 4530 would entitle the seaman to only half of his wages then earned, while section 4529, if applicable to such a situation, would entitle him to full wages, even though he had not then been discharged. It will not be presumed that Congress intended to confer on seamen the right to demand, at their option, half-earned wages, or full wages, in identical situations. If section 4529 is limited to payments to be made upon completion of the voyage shipped for, and discharge of cargo thereupon, or to the discharge of the seaman, if that first occurs, there will be no such conflict between the two sections, and each will have its proper scope. [2] The question remains as to what constituted the voyage, under the shipping articles in this case. They provided for a trip from Boston to Port Padre, Cuba, and to such other West Indian or Gulf of Mexico ports as the master might direct, and as the ship could make, within the allotted six months, and also for a return trip to any port in the United States north of Cape Hatteras. Section 4511, Revised Statutes (Comp. St. § 8300), recognizes the validity in shipping articles, of voyages of this kind, and provides a form in the schedule attached to it to describe them. We think it clear that a voyage, within the meaning of shipping articles so worded, is the journey or journeys permissible to the ship by the language of the articles, and for which the seaman engages. Under the language of the articles in the record, the ship was permitted to go to Port Padre, and also to such other ports or places, one or many, in any part of the West Indies or Gulf of Mexico, as the master might direct, provided the time limit. of six months was not exceeded, and provided the ship had not theretofore made a port in the United States north of Hatteras. The Martha, Fed. Cas. No. 9144; In re George Moncan, alias Ah Wah (C. C.) 14 Fed. 44. The facts show that the Cubadist, before landing at Mobile, had not made any ports other than ports in the West Indies and Gulf of Mexico, had not been away from Boston the stipulated six months, and had not touched at any port in the United States north of Hatteras, since its arrival at Port Padre, Cuba, and so had not completed the voyage that appellants shipped for in Boston. They were, therefore, not entitled to full pay, upon demand 24 hours after discharge of cargo at Mobile, since the voyage they shipped for was then incomplete. The libel was properly dismissed, and the decree of the District Court is affirmed. FOSTER v. UNITED STATES. (Circuit Court of Appeals, Fifth Circuit. February 27, 1919.) No. 3251. 1. INDICTMENT and InfoRMATION 132(8)-ELECTION BETWEEN COUNTS-DISCRETION. In view of Rev. St. § 1024 (Corap. St. § 1690), authorizing joinder in one indictment of several charges for the same act or transaction, election by the government between counts, all based on the same transactions, and all alleged to have been violations of Penal Code, § 225 (Comp. St. § 10395), as to embezzlement by postmaster, need not be required before the evidence is presented, but is in the discretion of the trial judge. 2. POST OFFICE 38, 48(71⁄2)—EMBEZZLEMENT BY POSTMASTER-INDICTMENT— INTENT "WILLFUL." Under Pen. Code, § 225 (Comp. St. § 10395) making it embezzlement for a postmaster to fail to remit or to fail or refuse to surrender money order funds on demand of authorized agent of Postmaster General, no specific intent is involved, so it is enough for indictment to aver that defendant acted willfully; "willful" implying knowledge and purpose to do wrong. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Willful.] 3. INDICTMENT AND INFORMATION 65 EMBEZZLEMENT BY POSTMASTERMATTERS OF EVIDENCE. Averments of indictment against postmaster under Penal Code, § 225 (Comp. St. § 10395), for embezzlement, held good against objection that they did not say by what means the alleged depository of the post office was designated and the post office inspector made the authorized agent of the department; these being matters of evidence rather than of averment. 4. CRIMINAL LAW 1186(4)—REVERSAL-INDICTMENT-DEFECT OF FORM. Any imperfect averment of an indictment, being a matter of form, which could not have prejudiced defendant, was cured by Rev. St. § 1025 (Comp. St. § 1691), especially when first objected to on the trial. 5. POST OFFICE 50-EMBEZZLEMENT BY POSTMASTER-QUESTION FOR JURY. Oral testimony of post office inspector that the H. post office was the designated depository for money order funds for the S. post office, with the fact that defendant, while postmaster at S., had habitually made remittances of such funds to H., was sufficient for submission of the issue to the jury. 6. CRIMINAL LAW 304(10)-EVIDENCE-JUDICIAL NOTICE-POST OFFICE INSPECTOR'S AUTHORITY. 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. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 7. CRIMINAL LAW 400(3)-EVIDENCE-OFFICIAL CAPACITY OF WITNESS. Witness could, without producing his commission, testify that, when he made a demand on defendant postmaster for money order funds, he was a post office inspector; his testimony establishing, at least, his character as a de facto officer. 8. CRIMINAL LAW 371(2)—EVIDENCE-OTHER OFFENSES—INTENT. Proof of previous failures of defendant postmaster to remit, as required by law, and likewise that he had issued money orders to himself to pay for whisky, without paying for them, was competent on the question of intent, involved at least in the count charging embezzlement by conversion to his own use of the money order funds of which he was shown to be short. 9. POST OFFICE 38-EMBEZZLEMENT BY POSTMASTER-SHORTAGE. It would be a shortage, on which the statutory embezzlement by a postmaster (Penal Code, § 225 [Comp. St. § 10395]) could be predicated, for him to issue money orders to himself to pay for whisky, without paying for them; it not being necessary that he actually received the money for which he failed to account. 10. POST OFFICE 38-EMBEZZLEMENT BY POSTMASTER-CHARACTER OF Funds -REGULATIONS OF DEPARTMENT. Relative to embezzlement by postmaster of money order funds, the character of moneys received by him on C. O. D. parcel post packages, to be remitted to sender, is fixed by the Post Office Department, by its regulations, treating them as money order funds. 11. CRIMINAL LAW 1169(6)-HARMLESS ERROREMBEZZLEMENT WRONGFUL INCLUSION OF FUNDS. No fine being imposed, postmaster, convicted of statutory embezzlement of money order funds, could not be injured by ruling treating as such funds money received by him on C. O. D. parcel post packages, to be remitted to sender; such money constituting but a small part of the conceded balance due from him to the government, and not explained by him. 12. WITNESSES 360-DISCREDITING-GOOD CHARACTER IN REBUTTAL. Testimony of defendant that, though he had signed a confession, he did so at instance of C., government witness, who knew it contained untrue statements, and promised him immunity if he signed it, tended to so discredit C. as to justify the government, on rebuttal, in proving his good character. 13. POST OFFICE 49EMBEZZLEMENT BY POSTMASTER-EVIDENCE-ACCOUNT WITH AUDitor. The effect given by Penal Code, § 225 (Comp. St. § 10395), to the transcript of the account of a postmaster with the Auditor for the Post Office Department, showing a balance due the government from him, is to require him, on prosecution for embezzlement, to explain the shortage. 14. CRIMINAL LAW 786(1)—INSTRUCTIONS-INTEREST OF DEFENDANT. A charge held properly given on the effect of the interest of defendant on the weight of his testimony. 15. CRIMINAL LAW 29-CONVICTION ON DIFFERENT COUNTS. That all of the counts of an indictment under Penal Code, § 225 (Comp. St. § 10395), for statutory embezzlement by postmaster, are based on the same shortage, will not prevent conviction on more than one count, as the same shortage, may constitute all the offenses charged. In Error to the District Court of the United States for the Western District of Louisiana; Geo. W. Jack, Judge. John W. Foster was convicted under Penal Code, § 225, and he brings error. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes J. M. Foster, F. J. Looney, and W. A. Wilkinson, all of Shreveport, La., for plaintiff in error. Joseph Moore, U. S. Atty., of Shreveport, La. Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge. GRUBB, District Judge. Plaintiff in error, who was the defendant in the District Court, was convicted in the Shreveport division of the Western district of Louisiana for a violation of section 225 of the Penal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1133 [Comp. St. & 10395]). The defendant was postmaster at Shongaloo, La., at the time of the alleged commission of the offenses charged in the indictment. That instrument contained four counts, all based on the same transactions, and all alleged to have been violations of the different penal provisions contained in that section. The first count was abandoned by the government on the trial. The defendant was acquitted under the second, which charged embezzlement of money order funds by the defendant while postmaster at Shongaloo. The third count charged the defendant with failing or refusing to remit to or deposit in the Treasury of the United States, or in a designated depository, money order funds of the Shongaloo post office, and thereby embezzling them. The fourth count charged the defendant with having failed to account for or turn over to the proper officer or agent money order funds, when required so to do by the law or the regulations of the Post Office Department, or upon demand or order of the Postmaster General, either directly or through a duly authorized officer or agent, and having thereby embezzled them. The defendant was convicted under the third and fourth counts of the indictment, and sentenced to four years' imprisonment in the penitentiary. [1] The defendant first complains of the overruling of his motion to require the government to elect on which of the four counts of the indictment it would proceed to trial. Section 1024 of the Revised Statutes (Comp. St. § 1690) authorizes the joinder in one indictment of several charges for the same act or transaction. The usefulness of the statute would fail, in cases where the different counts present one transaction in different forms to meet possible differing aspects of the evidence, if an election was required to be made before the evidence was presented. The matter was within the discretion of the District Judge, and his exercise of it against the motion was not only not an abuse, but was justified. Terry v. United States, 120 Fed. 483, 56 C. C. A. 633; McGregor v. United States, 134 Fed. 187, 69 C. C. A. 477; Pointer v. United States, 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208. [2] The plaintiff in error also complains of the overruling of his motion to quash each of the two counts of the indictment under which he was convicted. Two grounds of objection are made to the third count: That it was not charged in it that the defendant willfully and intentionally failed and refused to remit to and deposit in the post office at Shreveport, La., and that the charge was not specific enough as to what the requirements were as to making deposits, which had not been com 256 F.-14 |