Dix v. State, 89 Wis. 250

89 Wis. 250 | Wis. | 1895

Cassoday, J.

It appears from the evidence that during 'September, 1892, and for some time prior thereto, the Armour Packing Company was doing business in Wisconsin, having its headquarters or-place of business at Ashland; that during that time the plaintiff in error, Fix, was a salesman and collecting agent for the company at Eau Claire, Chippewa Falls, and along the Omaha Railway line, and that he collected from time to time a large amount of money in the aggregate, of which he failed to make returns to the ■company at Ashland, personally or by mail, at weekly periods, as it was his duty to do; that Fix was in Ashland, September 25,1892, and then paid in some money to the company as usual; and that he left the employ of the company some time-between September 25,1892, and October 1,1892. The precise times and places of making such collections, and the several persons from whom the same were made, are not stated in the evidence, except as to between $300 and $400, .and substantially all of such items appear to have been collected after the time he is convicted of having made the alleged embezzlement. In a letter to one of the Armours, dated December 21,1893, Due admits that he had embezzled $2,250 of the company’s moneys while he was acting as collector and salesman at Eau Claire. It is conceded that Dix- . never sold any goods nor made any collection for the company in Ashland connty, and it is further conceded that no-statement was ever made out nor any demand on Dix was. ever made for any particular amount of money at the time-lie was so last in Ashland, and there is no evidence of any demand for the moneys so retained at any time. For aught that appears, all the money so collected and retained may have been converted by Dix to his own use in some other-county than Ashland. The only evidence relied upon to-prove that Dix embezzled money in Ashland county is that he was there as mentioned, and then failed to pay over or account for the money he had previously collected.

The question recurs whether, upon such testimony, Dix■ could be properly convicted of having committed the crime-charged in Ashland county.' He was entitled to a public-trial by an impartial jury of the county or district wherein the offense had been committed. Const, art. I, sec. 7. The-words “ county or district ” are descriptive of the territorial jurisdiction. Weyrich v. People, 89 Ill. 90; Wheeler v. State, 24 Wis. 52; State ex rel. Brown v. Stewart, 60 Wis. 587. The court charged the jury, as a matter of law, to the effect that if the evidence on the part of the state was true then Dix was guilty; that the failure to pay over where it is in the-line of duty for a person to do so is an embezzlement, and wherever the payment should be made the defendant can be tried; that the failure to pay the money there in Ashland county, if they found, under the evidence, it was his duty to-so pay there, was an embezzlement in that county; and consequently that was the place where the defendant should be-tried for the offense. This is not a case where the accused was required by statute to pay over the money so collected at a particular place and to a particular person. His duty to so pay over rested in contract. His refusal or wilful neglect to so pay over upon the dema/nd thereof ’by the proper person entitled to receive the same, or the conversion of the same to his own use without special authority, would have been prirña faoie evidence of the embezzlement thereof. E. S. sec. 4419. But the evidence fails to show any such refusal or wilful neglect upon such demand in Ashland county, ór any such conversion in Ashland county, and hence the state faded to make out a prima faoie case of embezzlement in Ashland county. In re Eldred, 46 Wis. 530; Hill v. Taylor, 50 Mich. 549; State v. First Nat. Bank, 2 S. Dak. 568.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Ashland county, who will hold him in custody until he shall be discharged or his custody changed by due course of law.