219 Wis. 285 | Wis. | 1935
The defendant was charged in the language of the statute, sec. 343.25, with obtaining $20 in money by false pretenses. He pleaded guilty. After the plea was entered, the court ascertained that he had previously been convicted of a felony, and under the repeater statute, sec. 359.13, imposed a sentence of not less than one nor more than five years. The information did not charge the prior conviction, nor did the district attorney in writing charge the defendant with it after the fact was ascertained. The penalty for obtaining less than $100 in violation of the false pretense statute is imprisonment in the state prison or county jail for not more than one year or by a fine of $100. The defendant was not represented by counsel.
The defendant claims that the court was without jurisdiction to impose any sentence because the information does not state any offense, and bases the contention that no offense is stated in the information because, as he claims, in pleading tinder the false pretense statute it is necessary to set out the specific representation claimed to have been made, and to charge that it was false, that it was relied on by the person defrauded, and that such person was induced by the repre
In the former case a motion was made in arrest of judgment after verdict for the reason that the indictment did not state any offense. No objection to the indictment had theretofore been made. The trial judge certified the case to the supreme court for determination of the questions raised by the motion. The general charge made in the indictment was that the defendant falsely pretended that he was a merchant in the city of New Orleans, and that he had money to the amount of $250 belonging to him on deposit with a bank, which statements were expressly negatived as false, and that with intent to cheat and defraud the makers of the check he unlawfully and designedly obtained from them their check for the sum and of the value of $251.25. The court ruled that these “bald naked statements” were “too general and uncertain to constitute an offense” under the statute, which was then the same as now. There is also a statement in the opinion that without a statement that the makers were induced by reliance on the representations to deliver their check to the defendant, the indictment would not state an offense at common law, and this would seem to imply that the court considered that it did not state an offense under the statute. However, this statement has been overruled in Davis v. State, 134 Wis. 632, 115 N. W. 150, and the opinion in the latter case seems to imply that under sec. 355.33, Stats., a statute enacted after the decision of the Green Case, supra, an information under any statute in the language of the statute is sufficient, and no reason is perceived why this is not sound. If such an information does not, in the language of the opinion in Finsky v. State, 176 Wis. 481, 485, 187 N. W. 201, referred to later herein, so “individuate” the offense as to afford proper notice to the defendant of just what he is charged with, a motion to make it more definite and certain
In the Owens Case, supra, the defendant was charged with specific representations and that thereby he obtained from one Newman $400 of the property of a specified bank. The information was held “fatally defective” for not stating that Newman was the agent of the bank. The defendant had been convicted by a jury, sentence had been imposed, and the defendant imprisoned pursuant to the sentence, and this court directed that he be taken before the trial court to be discharged.
As above stated, sec. 355.33, Stats., did not exist when the Green Case was decided, and the Owens Case was decided without any mention of that statute, and presumably without any consideration of it. The defendant points out that it is stated in Finsky v. State, supra, wherein that statute was involved, that while it is sufficient to charge unlawful possession of intoxicating liquor in the language of the statute, it is not sufficient to charge the offense of obtaining money or goods by false pretenses, because the general statutory statement does not so “individuate the offense that the offender has proper notice . . . [of] what the offense he is to be held for really is,” and that the same is true in charging libel and using language tending to provoke an assault, basing the statement on the prior decisions of this court above cited and
The state contends that these rulings are out of line with later decisions of this court and ought not for that reason to be followed. The Owens Case, supra, was decided in 1892, and that is some time back, but the ruling of it was inferentially at least approved in the Finsky Case in 1922, and that approval is quite within the period during which the court has, as counsel claims, abrogated many ancient technicalities of practice that formerly served to enable the guilty to avoid punishment for their offenses. To the writer, the discharge in both the Green and Owens Cases seems absurd. In both, the proofs showed the defendant to have been clearly guilty under the statute for violation of which he was tried. In the one case by falsely representing that he had funds on deposit to cover a draft which he gave to the drawer of a check he had procured a check and cashed it. No objection was made until after the verdict and a finding of guilty. In this situation the information would today be amended to conform to the proofs and sentence imposed according to the practice obtaining in civil cases. In the Owens Case the situation was the same as in the Green Case. The proof showed that Newman was the cashier and agent of the bank, and today the course above indicated would be taken. Carver v. State, 190 Wis. 234, 208 N. W. 874; Watson v. State, 190 Wis. 245, 208 N. W. 897; Perrugini v. State, 204 Wis. 69, 234 N. W. 384. Doubtless the discharge in these cases was based upon the theory that the defendant had been put in jeopardy and could not again be tried for the offense. But we now have a statute, sec. 355.09, considered in the cases last cited, which does away with the nonsensical practice followed in the Green and Owens Cases, by providing that objection to the sufficiency of an information is waived unless taken, before “a jury is impaneled or testimony taken.” The court may,
As to the defendant’s contention that the information does not state any offense, we are of opinion that where an information is in the language of the statute it necessarily states an offense. It is subject to demurrer or motion to quash or other form of objection for insufficiency seasonably made, but in such case the court has power to permit or require an amended information to be presented and go on with the case if the original information is held to be insufficient and subject to cure by amendment. The court has jurisdiction of the case before it, and we perceive, no reason why it may not proceed as it would proceed in a civil action in case of a demurrer to a complaint. In saying that an information in the language of the statute states an offense, we are mindful that some of its statements may be conclusions of law rather than statements of fact. But if" in a civil action a complaint con
As tending toward support of the view that the information is sufficient to state the offense of obtaining money under the false pretense statute, it may be stated that sec. 348.403 provides that in stating the offense of obtaining money by a “confidence game” defined by sec. 348.402, it is sufficient to charge that the person paying the money “was defrauded of his money by use of the confidence game.” There is as much “individuation” of the offense in the instant case, to use the term employed in the Finsky Case, supra, as in the offense under sec. 348.402 in the form of the information authorized by sec. 348.403. The court may as rightly say that the one information under the one statute is sufficient as the legislature may say that the other information is under the other statute.
The defendant contends that where.an information is insufficient to charge an offense, and a plea of guilty is entered by the defendant, the court is without jurisdiction to proceed to sentence under the rule of In re Carlson, 176 Wis. 538, 186 N. W. 722. As we hold the information sufficient there is no need to consider this contention ánd we do not pass upon it.
The defendant also contends that because the penalty prescribed by the statute does not permit of a penalty in excess of one year in state prison, and the information did not charge
The case of Belter v. State, 178 Wis. 57, 66, 189 N. W. 270, is cited to the point that the court was without jurisdiction to impose the excess punishment for want of charging the conviction as the statute provides may be done. But that case is to the proposition that without such charge the record in that case showed no basis for such imposition because of “an entire absence in the record of any legal authority” for the court’s sending to prison a defendant who was charged
By the Court. — The judgment of the circuit court is affirmed.