88 Wis. 502 | Wis. | 1894
Lead Opinion
A great many errors are assigned for the reversal of the judgment of conviction in this case, and they have been urged before this court by the learned counsel of the plaintiff in error, and defended by the learned counsel of the defendant in error, with great zeal and ability. Having arrived at the conclusion that one of the errors assigned is fatal to the conviction, and perhaps also to the information, it becomes unnecessary to consider the others. But the question whether the judge of the Fifth judicial circuit was properly called into the municipal court to try the case is important as one of jurisdiction, and ought to be set at rest in view of other like cases. We therefore thought it our duty to decide it. We have arrived at a decision of this question with some hesitation and doubt. We are greatly aided, however, by the decision of this court in the case of State v. Hirth, 67 Wis. 368, which settled the law on the question up to that time.
1. In that case it was held that, in case of the application for a change of venue in the same municipal court on account of the prejudice of the judge, in lieu of awarding such change, the court might make an order requesting the circuit judge of an adjoining circuit to hold the court where the action is pending for the trial thereof, by virtue of ch. 218, Laws of 1883, which makes such a provision in respect to change of venue in criminal cases pending “in miy court of record” of any county in the state. Since then, however, ch. 435, Laws of 1887, has been enacted, which provides that in such a case pending in any circuit court the judge of said court may retain the case, and call upon any other circuit judge to attend and hold said court and
2. The fatal error in this case is the want of any evidence to sustain the charge in the information. The charge in the information is that John B. Koetting, as cashier and an officer of the South Side Savings Bank of the city of Milwaukee, on the 21st day of July, 1893, unlawfully, feloni-ously, and fraudulently did accept and receive in, into, and for, on account, and in the name of, said bank, on deposit
It seems to be conceded that there was no evidence whatever to prove the offense so described in the information. The court was requested by the defendant’s counsel, on the conclusion of the testimony, to direct a verdict of not guilty, upon the ground that there was no evidence whatever of the specific offense contained in the information. The court refused this request. This was error. In Jackson v. State, 55 Wis. 589, there was no evidence in a case of burglary that William Drake was the owner of the dwelling house as charged in the information, and the judgment was reversed for that reason. Chief Justice Cole said in the opinion that “ there was no variance, strictly speaking, but the proof did not go far enough to show that the dwelling was that of William Drake.” So here the proof did not go far enough to show that the money was received
By the Court.— The judgment of the municipal court is reversed, and the cause remanded for a new trial. The sheriff of Milwaukee county will take and hold the prisoner in custody for further proceedings according to law.
I agree with the chief justice in holding that the trial court had jurisdiction. I also concur in the suggestion that the coming legislature should make the statute so plain that in future no possible doubt can arise in the matter of calling in another judge.
The statute declares, in effect, that any person, as officer, principal, agent, or otherwise, engaged in the business of banking, “ who shall accept or receive on deposit, or for safekeeping, or to loan, from any person, any money . . . ivhen he knows, or has good reason to know, that such bank, company or corporation, or that such person, is unsafe or insolvent, shall be punished by imprisonment,” etc. E. S. sec. 4541. The validity of that 'section, and the construction of it to some extent, was considered by this court in Baker v. State, 54 Wis. 368. The thing sought to be punished by the statute, as it seems to me, is the accepting or receiving money by a person so engaged in the business of banking, ivhen he knows, or has good reason to know, that such bank or banker is unsafe or insolvent. Ordinarily the money so accepted or received by such bank or banker is accepted or received on deposit. In order to make' the section broad enough to cover every case where money is so accepted or received by a person so engaged in the business of banking, when he knows, or has good reason to know, that such bank or banker is unsafe or insolvent, there were added to the words “ on deposit ” the words “ or for safe-keeping, or to loan,” as stated. The purpose of the section, therefore, seems to be to punish every person engaged in the business of banking who, knowing or having good reason to know that such bank or banker is unsafe or insolvent, nevertheless accepts or receives money in such business, either “ on deposit, or for safe-keeping, or to loan.” These three purposes accompanying such acceptance • or receipt of money would seem to be sufficiently broad and general to include every purpose for which the
Concurrence Opinion
I concur in the reversal of the judgment on the second ground discussed in the opinion, namely, that the plaintiff in error was charged with one crime, and convicted of an entirely different crime. I further think that when, upon the filing of an affidavit of prejudice, a circuit judge is called in to try a criminal case in the municipal court of Milwaukee county, only the judge of an adjoining circuit can be called in, as provided by ch. 218, Laws of 1883 (S. & B. Ann. Stats, sec. 4686a). This act applies by its very terms to the municipal court, while ch. 435, Laws of 1887 (S. & B. Ann. Stats, sec. 2624a), by its language, applies to circuit courts alone. By a familiar rule of construction, I think this latter act has not affected the former act so far as it relates to municipal courts. Therefore it seems to me that Judge Clementson had no authority or jurisdiction to try this case.
I concur in the judgment of reversal in this cause upon the second point discussed in the opinion of the court.