State v. Black

75 Wis. 490 | Wis. | 1890

Cassoday, J.

Sec. 4423, R. S., punishes the obtaining .of property or a signature under the circumstances therein 'mentioned. The question here presented relates entirely to the obtaining of property. So much of that section as pertains to that question reads: “ Any person who shall designedly, by any false pretense, 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, . . . shall be punished,” etc. To sustain a conviction under this section four things must c.oncur. It sufficiently appears from the record that three of those things co-existed in the case at bar,' — That is to say it sufficiently appears that the defendant (1) “ designedly,” (2) by means of the false pretense mentioned, (3) “ and with intent to defraud,” obtained the board and lodging mentioned. The only question, therefore, requiring consideration here is whether the obtaining of such board and lodging was, in legal effect, the obtaining of “money, goods, wares, merchandise, or other property,” within the meaning of the section.

From the very wording of the statute it is manifest that no complete offense can be committed under it until the “ money, goods, wares, merchandise, or other property ” is actually obtained by the offender. This, being so, it is equally obvious that if the statute applies to the obtaining of board and lodging, then each meal of board obtained constitutes a separate offense; and the same would be true of each night’s lodging. If the section applies to board and lodging, then, for the same reason, it would apply to almost any service or use. Another serious difficulty with such application in the case at bar is the absence from the record of any certain and definite description of the property actually obtained. Many of the authorities hold that in the information or indictment in such cases “the property should be described with as much accuracy and particularity as in indictments for larceny.” State v. Kube, 20 Wis. 225; S. C. 91 Am. Dec. 395. „ Where the description of the property is uncertain, the defect is fatal. Ibid. We are to remember that it is a criminal statute we are construing. It should not be so construed as to multiply crimes, unless required by the context. The word “property ” is, in many cases, construed to include “ things in action and evidences of debt.” Subd. 3, 4, sec. 4972, B. S. But the words “other property,” in the statute quoted, must, under the familiar rule, noscitur a sociis, be limited to such tangible classes of property as are therein previously enumerated; that is to say, “money, goods, wares, merchandise, and other property ” of that description. This rule has frequently been applied by this court, especially to penal statutes. Jensen v. State, 60 Wis. 582, and cases there cited. See, also, Gibson v. Gibson, 43 Wis. 33; Estate of Kirkendall, 43 Wis. 179; Kelley v. Madison, 43 Wis. 645.

The principle governing the case at bar is somewhat similar to that involved in People v. Haynes, 14 Wend. 546; S. C. 28 Am. Dec. 530. In that case merchandise was purchased,' and placed by the seller in a box, marked with the buyer’s name and address, and delivered to the carrier named by the purchaser, to be delivered at his residence; but the seller, before delivering the shipper’s receipt and invoice, having learned that the purchaser was embarrassed, asked him in regard thereto, whereupon the buyer made false and fraudulent representations as to his condition, and, in consequence thereof, the seller delivered to the buyer the shipper’s receipt and invoice, and did not stop the goods in transitu; and it was held that the buyer .was not criminally liable for obtaining the goods by false pretenses, since the goods were in law obtained when they were delivered to the carrier, which was before the false pretenses were made.

The construction of the statute indicated has additional force from the fact that the same section punishes the obtaining by false pretenses of a signature to a written instrument, the false making whereof would be punishable as forgery. Sec. 4423, R. S. This clearly covers some “ things in action and evidences of debt,” and by necessary implication excludes others, as, for instance, a mere credit, as here. We must hold that the words “ or other property ” do not include the mere obtaining of board and lodging under the circumstances stated.

The result is that the first question propounded is answered in the negative. This renders it unnecessary to answer the second question.

By the Court.— Ordered accordingly.