217 Wis. 568 | Wis. | 1935
The first question raised is whether a writ of error lies. Sec. 358.12, sub. (3), Stats., provides that a
Upon the authority of this case it is urged that the acceptance of a plea of not guilty committed the county court to trying the offense; that the proceedings in the county
It is not necessary at this time to determine at what point in the trial of a criminal cause before the court without a jury, prior to the termination of the trial by a finding upon the merits, jeopardy attaches, if indeed it attaches in such a trial prior to such a finding. It is enough to state that in this case it does not appear that there was a waiver of jury trial, or that any trial on the merits before the county court was ever contemplated or commenced. The contention that the court, having jurisdiction to try the misdemeanor charge which was necessarily included within the felony charge, had no occasion to conduct the preliminary examination, has no merit for the reason that the court derived its jurisdiction to bind over and to hold a preliminary examination from the fact that the complaint sufficiently charges a felony. The fact that it necessarily includes a misdemeanor charge would not rob the county court of jurisdiction to hear and bind over. The situation was quite different in the Belter Case. There the only offense charged in the complaint was a misdemeanor, and the lower court had full jurisdiction to try.
The complaint is in eleven counts. In substance the charge is that defendant, for the purpose of inducing two banks in the city of Eau Claire to make loans, filed with them a false statement of his assets and liabilities, and that the banks were deceived into giving credit to their loss. The charge is that defendant “did then and there designedly, falsely, fraudulently and feloniously represent and pretend to said State Bank of Eau Claire that he, the said P. J. Chambers, was then and there worth a considerable sum of money and had considerable amount of property, and did exhibit a financial statement showing he was worth a considerable sum of money, to wit, in excess of $100,000, when the said P. J. Chambers knew that he was not worth the amount exhibited in said financial statement; and that the said State Bank of Eau Claire, believing and relying on the false representations made by said P. J. Chambers and being then and there deceived and induced thereby, was induced to make said loan to said P. J. Chambers, and did then and there deliver to P. J. Chambers the s.um of $5,000, and the said P. J. Chambers did designedly, falsely, fraudulently and feloniously obtain from said State Bank of Eau Claire by means of said false, fraudulent and felonious representations aforesaid, the sum of $5,000 in money, the property of said State Bank of Eau Claire, whereas in truth and in fact the said P. J. Chambers was not then and there worth the sum of money exhibited by said financial statement, and that the said P. J. Chambers knowingly exhibited said financial statement when he was not worth that sum, as exhibited by said financial statement, contrary to section 343.25 of the Wis
Sec. 343.25 provides:
“Any person who shall designedly, by any false pretenses or' by any privy or false token and with intent to defraud, obtain from any other person any money, goods, wares, merchandise, or other property, or shall obtain with such intent the signature of any person to any written instrument, the false making whereof would be punishable as forgery, shall ... be punished,” etc.
Sec. 343.41 penalizes as a misdemeanor “any person who shall, directly or indirectly, designedly make or cause to be made any false signed statement in writing, in reference to his assets or liabilities, or both, . . . for the purpose of . . . procuring credit in any form.” This section was enacted by ch. 265, Laws of 1905, as sec. 4438h, and the crime therein defined was made a felony under the act as originally enacted. It was designed to' create a crime that did not exist under sec. 343.25, then sec. 4423. The law was repealed by ch. 297, Laws of 1915, and sec. 343.41 substituted, changing the offense from a felony to a misdemeanor.
While the complaint sufficiently charges a felony under sec. 343.25, it is also sufficient to charge a misdemeanor under sec. 343.41. The comment in Laev v. State, 152 Wis. 33, 139 N. W. 416, is applicable here. “It is utterly impossible to commit a crime under sec. 4423 [sec. 343.25] in the form and manner in which it was committed in this case without also committing one under sec. 4438/z. [sec. 343.41].” The evidence, however, did not sustain the felony charge, but simply was to the effect that defendant, with intent to procure credit, filed a deliberately false statement of assets, .and that he received credit from the banks as a result of such false statement, to the loss or prejudice of the banks. There is no evidence of intent to defraud and no obtaining of money, goods, wares, and merchandise such as is necessary
The state relies upon the rule that a district attorney, in filing an information in the circuit court, is not limited by the complaint, but may file an information setting forth the crime committed according to the facts ascertained upon the preliminary examination. Dahlgren v. State, 163 Wis. 141, 157 N. W. 531; Bianchi v. State, 169 Wis. 75, 171 N. W. 639; O’Keefe v. State, 177 Wis. 64, 187 N. W. 656; Jones v. State, 184 Wis. 50, 198 N. W. 598; Fault v. State, 178 Wis. 66, 189 N. W. 274; State ex rel. Kropf v. Gilbert, 213 Wis. 196, 251 N. W. 478; Hobbins v. State, 214 Wis. 496, 253 N. W. 570.
It is the further contention that since the preliminary examination indicated that defendant was probably guilty of misdemeanors under sec. 343.41, he was properly bound over and the district attorney was free to file an information charging an offense under that section. The difficulty with the state’s contention is that as to the first eight counts the statute of limitations has run upon the offenses there charged.
Sec. 353.22 provides:
“Any prosecution by indictment, information or otherwise for a criminal offense not punishable by imprisonment in the state prison must be commenced within three years after the commission thereof, unless otherwise provided by law.”
The eighth count, which states the most recent offense of the first eight counts, fixes the time of the offense as May 16, 1929. The prosecution was commenced September 10, 1932.
By the Court. — Order affirmed.