The defendant was charged with the violation of sections 4046 and 4053 of the Revised Statutes [U. S. Comp. St. 1901, pp. 2752, 2755], and, having been convicted of both offenses, now moves for a new trial and for an arrest of judgment.

The indictment in its first count charges that defendant was a clerk’ in charge of a branch money-order post-office -station at the city and county of San Francisco; that as such clerk he had in his possession and under his control the sum of $1,240.55, lawful money of the United States of America, the same being a portion of the money-order funds of the United States, and that so having in his possession .and under his control the said money he feloniously embezzled and converted it to his own use. The fact that there was a shortage of $1,240.55 in the money-order account of the defendant was not disputed upon the trial, but the defendant offered himself as a witness, and testified in substance that such shortage was due to the fact that he had issued postal money orders, which in the aggregate amounted to that sum, to certain creditors of his in payment of his private indebtedness to them, and that he never actually received any money thereon. In view of this testimony the defendant requested the court to instruct the jury as follows:

This instruction was not given, and the defendant urges in support of his motion for a new trial that the refusal to so charge was error. It is argued that, assuming the testimony of the defendant to be true,, he did not commit the crime of embezzlement, because the money paid upon the money orders issued by him was never in his custody and possession, and that his only offense was that of issuing money orders without having previously received the money therefor, in violation of section 4030, Rev. St. [U. S. Comp. St. 1901, p. 2742]. The defendant is undoubtedly charged in the first count of the indictment with embezzlement, and it was, therefore, incumbent upon the government to prove that he had fraudulently appropriated to his own use money-order funds belonging to the United States, and that such funds had been intrusted to his care and custody as a clerk in the United States post office; and it thence follows that, if the testimony given by the defendant shows that he was never intrusted with the possession and custody of the money which was paid on the postal money orders issued by him, the instruction requested by the defendant should have been given to the jury. The question for decision,, then, is this: Assuming that the orders were issued by the defendant simply in payment of his private debts, can it be said that the money which the government paid to the holders of such orders, and which has been lost to it, was so far in the care and custody of the defendant that the wrongful appropriation thereof to his own use in the manner •stated was an embezzlement of such money by him? Section 4029, Rev. St. [U. S. Comp. St. 1901, p. 2741], is as follows:

It would seem to be too clear for argument that under this section funds payable upon money orders drawn by a postmaster or clerk having authority to issue the same in the regular course of his official duty may be deemed to be intrusted to such postmaster or clerk in the sense that, if wrongfully converted by him to his own use, he is guilty of the crime of embezzlement. Such funds are in fact subject to his official order; that is, they are set apart by the government for the payment of money orders issued by him, and are thus intrusted to his official care, although they may not be in his actual custody. The case of Calkins v. The State, 18 Ohio St. 366 , 98 Am. Dec. 121 , is directly in point. The defendant in that case was indicted under a statute which made it an offense for a clerk or servant to embezzle property belonging to any other person, and coming into his possession or under his care by virtue of such employment. The in *846 dictment in that case charged the defendant with the embezzlement of wheat belonging to a railroad company by which he was employed as a clerk. It appeared upon the trial that the railroad company had a grain elevator in which all grain arriving by way of its road was stored, and in the transaction of this business an account was kept of each consignment of grain received. This account was kept by the defendant, and he was also authorized to issue to the owners or consignees of the grain thus stored a writing called a “grain order,” and to subscribe thereto the name of the general agent of the company, and upon presentation of such order to issue a shipping order to the holder. The court in that case said:

This reasoning would seem to be conclusive upon the question now under consideration. It certainly is quite satisfactory to my mind. The defendant here, by virtue of his employment as clerk in charge of a branch money-order post office, actually converted to his own use money-order funds of the government by applying the same to the payment of his debts, and he was able to effect this wrongful conversion because such funds were so much under his official control that they were subject to his official order. Without pursuing the discussion further, it is sufficient to say that the instruction requested by the defendant was properly refused.

2. The second count of the indictment sets forth that the defendant was the clerk in charge of a branch post office in the city of San Francisco, and as such clerk was intrusted with the sale of a large number of postage stamps and stamped envelopes of the value of $132.35, and that as such clerk in charge of said branch post office he feloniously and willfully refused and neglected to account for the postage stamps and stamped envelopes intrusted to him, although requested so to do. Section 4053, Rev. St. [U. S. Comp. St. 1901, p. 2755] provides:

It is claimed that this count of the indictment does not state an offense, because it fails to allege that the defendant was intrusted by law with the sale of the postage stamps and stamped envelopes referred to. Section 3918, Rev. St. [U. S. Comp. St. 1901, p. 2681] provides:

While the indictment does not charge in direct terms that the postage stamps and stamped envelopes referred to in the second count were intrusted by law to the defendant, still, in view of this statute, it sufficiently appears from the facts alleged that such was the cáse.

The motions for a new trial and for arrest of judgment are denied.