112 Wis. 491 | Wis. | 1901
The plaintiff in error was convicted of having stolen at the time and place named one bag of buckwheat of the value of $1.50, and thereupon he was sentenced to pay a fine of $5 and costs of the suit, taxed at $21.44, and in default of payment thereof to be imprisoned in the county jail at hard labor for a term of twenty days, or until the fine and costs should be paid or he be discharged by due course of law.
Error is assigned because, at the. close of the testimony on the part of the state, the court refused to direct the jury to find the accused not guilty. This is put upon two grounds: one that the complaint and warrant both allege that the buckwheat was the property of “ May Armour,” whereas the evidence showed that it was the property of “ Mrs. Philip
At the close of all the testimony, and after the opening argument of the district attorney to the jury, the state asked permission of the court to amend the complaint by striking out the name of “May Armour,” and inserting in lien thereof “Mrs. Philip I). Armour, Jr.” After the district attorney
The mere fact that the owner of the property was not sworn and examined as a witness to prove her nonconsent to the taking of the property, did not, under the circumstances stated, require the court to direct a verdict in favor of the accused; and hence the refusal to do so was noterror. The undisputed facts distinguish the case in that regard from those relied upon by counsel. State v. Morey, 2 Wis. 494; State v. Moon, 41 Wis. 684.
“ But upon the contrary, and after such full consideration of all the testimony, considered bvv you with the utmost degree of care, caution and important consideration, that the defendant was not given permission by said McKennon to take the grain in question from said premises, then you should find the defendant guilty.”
This leaves entirely out of consideration the question whether the accused took the property with any felonious intent, which is an essential element of the crime of larceny. 3 Greenl. Ev. §§ 150, 157. The charge contains no definition of such crime. According to Mr. Greenleaf, the most approved definition of the offense of larceny at common law is “ the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another from any place, with a felonious intent to convert them to his-[the taker’s] own use and make them his own property, without the consent of the owner.” 3 Greenl. Ev. § 150. Of course, the consent of the authorized agent of the owner would be in legal effect the consent of the owner. In the case at bar, if the accused honestly believed that McKennon had authority to give him permission to take the buckwheat away and convert the same to his own use, and he did so in pursuance of such permission, then there would be an absence on his part of such felonious intent. The giving of the charge in question was error.
By the Court.— The judgment of the municipal court for the Western district of Waukesha county is reversed, and the cause is remanded for a new trial.