Opinion
March Term, 1901.
Wilton Bennet, for the appellant.
Franklin Bartlett, for the respondent.
The plaintiff, being the chief of police referred to, seeks to recover damages alleged to have been sustained by the publication of the following article in the defendant's newspaper:
"GOLDSMITH SURRENDERS. "Accused Port Jervis Bank Cashier Gives Himself Up.
"Lewis E. Goldsmith, assistant cashier of the Port Jervis National Bank, who is accused of having stole $54,000 of the Bank's funds, surrendered to United States Marshall Henkel, at noon, to-day, having eluded a number of Deputy Marshalls, who have been on his track for over two weeks under direction of United States Marshall Henkel.
"United States Bank Examiner Bryan of Brooklyn made an examination of the Port Jervis Bank books on Nov. 14th and found that Goldsmith was $54,000 short. He swore out a warrant on December 12th but when United States Marshall Henkel went to Port Jervis to serve it he found that Goldsmith had left the place four days before very suddenly and without having left any intimations as to where he was going. Goldsmith made no secret of his intent to depart and the last man to say good bye to him at the railroad station was the Chief of Police of Port Jervis who remarked to him that he seemed in a great hurry to leave and in a joking manner asked why he did not wait until the warrant came and save the trouble of following him up.
"Goldsmith replied that he had urgent business in another part of the country, which required his immediate presence. The United States Deputy Marshall kept closely on Goldsmith's heels but could not close on him for he had left one place after another just before they got there. It is said Goldsmith visited places in Delaware and New Jersey in addition to this State."
The complaint alleges that the article charges the plaintiff with being "guilty of a violation of section 87 of the Code of Criminal Procedure ( sic, presumably Penal Code) in conniving and assisting the escape of a defaulter a criminal."
The defendant demurred to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The Special Term sustained the demurrer, and the plaintiff appeals.
There is nothing in the publication implying a violation by the plaintiff of section 87 of the Penal Code, for the plaintiff as chief of police had no authority and was not bound to arrest Goldsmith.
The publication stated that Goldsmith, as assistant cashier of a national bank, had stolen a part of its funds. This is a crime declared by section 5209 of the United States Revised Statutes, and as such is exclusively cognizable in the Federal courts. (U.S. Const. art. 3, § 2, subd. 1; U.S.R.S. § 629, subd. 20.) Section 5209 expressly states that such an embezzlement is a misdemeanor punishable by imprisonment of from five to ten years. In United States v. Coppersmith (4 Fed. Rep. 198) and in United States v. Wynn (9 id. 886) it was held that statutory offenses under the United States statutes are not felonies unless so declared expressly or impliedly by the statute.
It follows that Goldsmith was not liable to arrest for a felony, and, under section 177 of the Code of Criminal Procedure, could not have been arrested or detained by the plaintiff.
We are not deciding whether or not, under proper allegations in a complaint, the article might not be actionable.
The judgment should be affirmed.
All concurred.
Judgment affirmed, with costs.