140 Wis. 373 | Wis. | 1909
Tbe plaintiff in error alleges that tbe refusal of tbe court at tbe beginning of tbe trial to compel tire district attorney to elect on which count of tbe information he would prosecute tbe case operated to bis prejudice. Tbe three counts of tbe information charged tbe defendant with making false entries in tbe books of tbe bank and with making a false report to tbe commissioner of banking. It is apparent that all of tbe offenses alleged in tbe three counts of tbe information pertained to alleged false entries in tbe bank books respecting transactions with other banks and with reference to outstanding time certificates. It' is alleged that
The court discharged the defendant as to the- second count and no further consideration need be given it
It appears from the evidence of the experts that the Arcadia bank books disclose the fact that the defendant inserted in his report to the commissioner of banking an incorrect and false sum as the amount due from the Winona bank. It is contended that this evidence of the experts also included a statement that the books of the Winona bank show that the
It is furthermore contended that the verdict cannot stand' because the element of the offense charged in the third count respecting the falsification of the report as to outstanding time certificates is not sustained by evidence, and because the jury in their verdict found defendant not guilty of wilfully falsifying the books and the report in this respect by their-verdict on the first count in the information. The third count
The instructions of the court are assailed as erroneous for the reason that the court did not restrict the jury in agreeing upon their verdict upon the third count in the information to the offense embraced therein. The court read to the jury this charge in the information, and then stated to. them:
“You have heard what it [the information] contains, and you have also had offered before you in evidence the report*381 itself, and it is for you to determine under all of the evidence in this case whether or not there are any false statements or false entries in reference to the resources and liabilities of' the bank . . ,. contained in such report, and whether or not such report contains any false statements or false entries with reference to any of the books of such bank.”
Though the court used the words “any false statements or false entries” in speaking of the book entries and the resources and liabilities, it must be presumed that the jury applied this language in view of what immediately preceded, namely, that the prosecution was for falsifying the report in the two respects alleged in the information just read to them. This correctly informed them of the items embraced by the court in this general reference to any false statements or entries embraced in defendant’s report. The instruction was therefore sufficiently restrictive to guide the jury in their deliberations and was not prejudicial to the accused.
We find nothing in the record showing any error affecting-the substantial rights of the defendant to his prejudice and calling for a reversal of the judgment.
By the Court. — Judgment affirmed.