18 U.S.C. (1940 ed.) 82 reads: "Whoever shall take and carry away or take for his use, or for the use of another, with intent to steal or purloin . . . any property of the United States . . . shall be punished as follows . . . ."
In United States v. Anderson, 45 F. Supp. 943, a prosecution for conspiracy to violate that section, District Judge Yankwich said: "It has been before the courts in very few cases. But such courts as have had cases under it, including our own Ninth Circuit Court of Appeals, have held that the object of the section is to introduce the crime of larceny into the Federal Criminal Code.
"In Frach v. Mass, 9 Cir., 1939, 106 F.2d 820, 821, we find these words: `Larceny of property of the United States is made a crime by 18 U.S.C.A. 82.' "This means of course, that in interpreting the statute, we may apply the principles governing the common law crime of larceny, as interpreted by the courts of various states." 45 F. Supp. at 945.
United States v. Trinder, 1 F. Supp. 659, was a prosecution of a group of boys, under 82, for "stealing" a government automobile. They had taken it for a joy ride without permission, fully intending to return it when they were through. Their plans went awry when the auto came to grief against a telephone pole. In dismissing the complaint, the District Judge said: "Upon principle and authority there was no stealing but merely trespass; secret borrowing. At common law and likewise by the federal statute (18 USCA 82) adopting common-law terms, stealing in general imports larceny; that is, felonious taking and intent to permanently deprive the owner of his property." 1 F. Supp. at 660.
18 U.S.C. (1940 ed.) 87, entitled "Embezzling arms and stores," provides: "Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States, furnished or to be used for the military or naval [342 U.S. 246, 267] service, shall be punished as prescribed in sections 80 and 82-86 of this title." No cases appear to have been decided relating to the element of intent in the acts proscribed in that section.
18 U.S.C. (1940 ed.) 100, "Embezzling public moneys or other property," states that: "Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both." The only noted case of consequence is Crabb v. Zerbst, 99 F.2d 562 (C. A. 5th Cir.), to which the dissent below referred at some length. The appellant there was convicted of feloniously taking and carrying away certain personal property of the United States in violation of 46 of the Criminal Code, 18 U.S.C. (1940 ed.) 99, and had been sentenced to seven years' imprisonment. He argued that the five-year limitation of sentence in 18 U.S.C. (1940 ed.) 100 for stealing property of the United States reduced the ten-year limitation in 99 for feloniously taking and carrying away property of the United States to five years also. The Court of Appeals rejected his argument, holding that the crime of "stealing" in 100 was separate and distinct from the offense specified in 99, on the ground that 100 was a broadening of the common-law crime of larceny to foreclose any avenue by which one might, in the process of pleading, escape conviction for one offense by proving that he had committed another only a hair's breadth different. In the course of its opinion, it advanced the following pertinent observations: "That felonious taking and carrying away of property which may be the subject of the offense constitutes the common law offense of larceny cannot be disputed. . . . However, it is doubtful if at common law any fixed definition or formula [as to the meaning of `larceny'] was not strained in its application to some of the cases clearly constituting the offense. Modern criminal codes treat the offense in various ways. Some define the offense by following the old cases and are merely declaratory of the common law, while others [342 U.S. 246, 268] have broadened the offense to include offenses previously known as embezzlement, false pretenses, and even felonious breaches of trust. "As pointed out above, the modern tendency is to broaden the offense of larceny, by whatever name it may be called, to include such related offenses as would tend to complicate prosecutions under strict pleading and practice. In some of these statutes the offense is denominated `theft' or `stealing.' No statute offers a clearer example of compromise between the common law and the modern code than the two sections here involved. Section 46 [18 U.S.C. (1940 ed.) 99] deals with robbery and larceny, the description of the latter being taken from the common law. Section 47 [18 U.S.C. (1940 ed.) 100] denounces the related offenses which might be included with those described in section 46 under a code practice seeking to avoid the pitfalls of technical pleading. In it the offense of embezzlement is included by name, without definition. Then to cover such cases as may shade into larceny, as well as any new situation which may arise under changing modern conditions and not envisioned under the common law, it adds the words steal or purloin . . . . Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another, and deprives the owner of the rights and benefits of ownership, but may or may not involve the element of stealth usually attributed to the word purloin. . . . Thus, in any case involving larceny as defined by the common law, section 46 [18 U.S.C. (1940 ed.) 99] would apply. Where the offense is embezzlement, or its nature so doubtful as to fall between larceny and embezzlement, it may be prosecuted under section 47 [18 U.S.C. (1940 ed.) 100]." 99 F.2d at 564-565.
The reference in Crabb v. Zerbst to 18 U.S.C. (1940 ed.) 99, the robbery and larceny statute then operative, suggests examination of its successor in today's code. For purpose of clarification, that section states that: "Whoever shall rob another of any kind or description of personal [342 U.S. 246, 269] property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than $5,000, or imprisoned not more than ten years, or both."
The Reviser's Note to 18 U.S.C. 641 makes no mention of it as a successor to that section. The present robbery statute is 18 U.S.C. 2112, "Personal property of United States," providing that: "Whoever robs another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years." The Reviser's Note to that section recites that it is derived from 99 of the 1940 Code, and "That portion of said section 99 relating to felonious taking was omitted as covered by section 641 of this title," which makes it clear that, notwithstanding the absence of any reference to 18 U.S.C. (1940 ed.) 99 in the Note to 18 U.S.C. 641, the crime of larceny by a felonious taking and carrying away has been transported directly from the former into the latter.
18 U.S.C. (1940 ed.) 101 is the forerunner of that part of present 641 dealing with receiving stolen property, and has no application to the problem at hand. The history of 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions. It is also pertinent to note that it renders one subject to its penalty who "knowingly converts to his own use" property of the United States. The word "converts" does not appear in any of its predecessors. 18 U.S.C. (1940 ed.) 82 is applicable to one who "take[s] for his [own] use . . . with intent to steal or purloin . . . ." 18 U.S.C. (1940 ed.) 87 uses the words "knowingly apply to his own use." Neither 18 U.S.C. (1940 ed.) 99, 100, nor 101 has any words resembling "knowingly converts to his own use." The 1948 Revision was not intended to create new crimes but to recodify those then in existence. We find no suggestion that a guilty intent was not a part of each crime now embodied in 641.