The opinion
.BETHEA, District Judge.
This is an indictment for violation of .the provisions of section 5438, Rev. St. [U. S. Comp. St. 1901, pi 3674], The part of the section under which the indictment is drawn is as follows:
“* * ⅜ Every person who knowingly purchases or receives in pledge for any obligation or indebtedness from any soldier, officer, sailor, or other person called into or employed in the military or naval service any arms, equipments, ammunition, clothes, military stores, or other public property, such soldier, sailor, officer, or other person not having the lawful right to pledge or sell the same, every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.” - ' .
; It appears that Edward Hart, the defendant, on a number of different occasions at his place of business in Highwood, Ill., purchased and neceived in pledge from soldiers employed in the military service of the United States at Ft. Sheridan certain articles of clothing, consisting'of ■fur .caps, fur gauntlets, capes, and coats, which articles had been previously issued to them as soldiers by the United States. On motion to take from the jury, the question arose as to whether certain articles of clothing, namely, caps, gloves, shoes, and coats, which had been issued to soldiers in the service of the United States, and by them sold *203 and pledged to the defendant, are public property, under section 5438 of the Revised Statutes. Clothing is issued to soldiers by the United States for use by them in the capacity of soldiers. The government determines the character, quality, and quantity of clothing to be issued to the soldiers, and when the clothing is issued, although it is charged against the soldiers on their clothing account, they receive but a qualified interest therein. The seventeenth article of war (Act July 27, 1892, c. 272, §1, 27 Stat, 277 [U.S. Comp. St. 1901, p. 947]) provides that any soldier who sells, or through neglect loses or spoils, his horse, arms, clothing, or accouterments shall be punished as a court-martial may adjudge. Section 3748 of the Revised Statutes [U. S. Comp. St. 1901, p. 2527] provides that clothes, arms, military outfits, and accouterments furnished by the United States to any soldier shall not be sold, bartered, exchanged, pledged, loaned, or given away, and that no person not a soldier, or duly authorized officer of the United States,' who has possession of any such clothes, arms, military outfits, or accouterments, so furnished, shall have any right, title, or interest therein, but the same may be seized and taken .wherever found. These sections of the Revised Statutes indicate that the title to clothing issued to soldiers remains in the United States; therefore, I hold that in this case the articles of clothing which were issued to the soldiers at Ft. Sheridan while they were employed in the military service of the United States were public property, under section 5438. Motion to take from the jury overruled.
Jury instructed to return verdict of guilty