189 Wis. 56 | Wis. | 1926
Plaintiff in error (hereinafter called the defendant) was convicted of taking, using, and operating an automobile upon a public highway of this state, without the consent of the owner, under sec. 343.18, Stats., and brings the judgment here for review'upon a writ of error. His sole assignment of error is that his plea in bar was improperly overruled. The plea in bar alleged a former prosecution for the crime of larceny of the identical car, which prosecution was based upon the same act or transaction that is the subject of this prosecution. His claim is that by virtue of the former prosecution he was in jeopardy as to the offense of which he stands convicted in this case. He claims that the offense of taking and operating the automobile without the consent of the owner is a lesser offense included within the greater offense of larceny. Upon the overruling of the plea in bar it was stipulated that the testimony taken on the former prosecution be regarded as the evidence in the instant case. That evidence shows without dispute that on the night of December 15, 1924, the defendant in company with another took an automobile belonging to Frank F. Collath, the complaining witness, at his private garage, without his consent, knowledge, or permission, and that the defendant drove the car upon the streets of the city of Milwaukee. It was abandoned while being returned to the garage of the owner because a chain became disengaged from the wheel and wound around the brake drum, and the car could not be driven any further. Defendant was acquitted of the crime of larceny because no intent to permanently deprive the owner of the automobile was proven. He was then re-arrested upon the present charge.
In the prosecution for larceny the State failed to prove the intent to steal or to permanently deprive the owner of his property. With the words charging the intent to steal stricken from the information, did it leave a description of
By the Court. — Judgment affirmed.