(dissenting):
There is a sharp disagreement as to what mail offense the accused is actually charged with committing. The accused maintains that the specification .alleges an act in violation of 18 USC § 1708, but the Government contends it sets out a violation of Section 1702. There is a difference in language between the two statutes which for present purposes may be put aside.. The controversy, however, serves to emphasize the need of • designating specifically the statute involved, when the charge is under Article 134 of the Uniform Code, 10 USC § 934.
' The principal opinion relies upon United States v Maxwell, 137 F Supp 298 (WD Mo) (1955), to sustain its conclusion. In my opinion, that cas.e supports the Government’s position.
*43Maxwell was a prosecution for a violation of Section 1702. Mail was delivered to a common mailbox located on the porch of a three-family apartment building. The first person to go to the mailbox customarily removed the mail, and deposited all matter not addressed to him on a little table in the entrance hallway. The defendant, one of the occupants of the premises, stole a letter which had been removed from the mailbox by another tenant or the superintendent of the building and placed on the table. There, as here, the defense contended that when mail passes from regular mail channels to an authorized agent of the addressee, there is no violation of Section 1702, because delivery to the agent is delivery to the addressee. However, the trial court rejected that construction of the statute.
District Judge Ridge held that Section 1702 is intended to protect the mail even after it leaves physical possession of the Post Office Department. He indicated it was particularly important to note that one of the acts against which the statute was directed was embezzlement. “Embezzlement,” he said, “can only relate to an offense by one who has come into lawful possession of a letter, after it has been in an authorized depository for mail matter and is converted by the receiver to. his own use, before it is delivered to the person to whom it is directed.” United States v Maxwell, supra, page 303. Judge Ridge concluded that mail is protected under the statute until it is delivered to the manual possession of the. addressee. He referred to several recent convictions for violations of Section 1702, which included among them, the prosecution of some bellboys to whom letters were entrusted for distribution to guests.
The Court of Appeals affirmed Judge Ridge’s action in the Maxwell case. True, it said, as the principal opinion notes, that mail is protected “until it reaches the addressee or his authorized agent.” But that statement was made early in the opinion and was apparently intended as a loose, general observation. • The final comment by the Gourt of Appeals clearly confirms the reasoning of Judge Ridge and his conclusion that delivery is not complete until the addressee obtains manual possession of •mail addressed to him. It said:
“Here, the stolen letter did not reach the manual possession of the person to whom it was addressed, but was an undelivered letter over which Section 1702, we think, extended its protection, even though the letter was not, at the time it was stolen, in an authorized depository for mail matter.
“We think it is unnecessary to add anything further to the opinion of the District Court.” [Maxwell v United States, 235 F2d 930, 932 (CA 8th Cir) (1956).]
Even if we accept the view that delivery to an authorized agent ends the protection of the statute, the problem here is whether the accused was an authorized agent or messenger. Con-cededly, he had received sometime before the offense a signed authorization from the addressee to pick up his mail. - However, an agency is terminated by operation of law if the conditions of the agency are so changed that the agent must know that, if the principal was informed of the changed situation, he would not “consent to the further exercise of the authority.” 2 Am Jur, Agency, § 74, page 60. The rule is equally applicable to the messenger status occupied by the accused. The accused admitted he knew that the addressee received letters containing money; that he stole some of these only when in need of money, but delivered all when not in need. It can be argued,' therefore, that as between the addressee and the accused, the recurrent criminal purposes of the latter terminated his-authority to receive mail, and he was not an “authorised” agent of the ad-, dressee. See United States v Sander, Fed Case No. 16,219.
. I would affirm the decision of the board of review.