State v. Burke, 189 Wis. 641

State v. Burke

189 Wis. 641 | Wis. | 1926

The following opinion was filed February 9, 1926:

Vinje, C. J.

Sec. 4415, Stats., under which the defendant was prosecuted, so far as applicable to this case reads:

“Section 4415. . . . Whoever being a bailee of any chattel, money or valuable security shall fraudulently take or fraudulently convert the same to his own use or the use of any pe'rson other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny, and may be convicted thereof on an indictment or information for larceny, and upon such conviction be punished as hereinbefore prescribed.”

The first question reported is, “On the information, the facts certified and submitted, and the verdict of the jury, can the defendant be sentenced under sec. 4415?” It is the contention of the defendant’s counsel that under- the facts certified no relation of bailor and bailee existed between the Robert P. Hansen Company and the defendant, but that on the contrary the defendant obtained both possession and title to the checks by false representations, and the offense committed should have been punished under sec. 4423, relating to obtaining money under false pretenses. Counsel further argues that since the check was certified to, it conclusively shows that title as well as possession vested in the defendant upon the delivery of the check to him, and he relies upon sec. 1684 — 5, Stats-., to show that title passed, and cites a number of cases to the proposition that where title passes the offense is that of obtaining money under false pretenses and not that of larceny. If counsel’s interpretation of the *646facts is correct we have no quarrel with his law. But we think it clear from the facts certified that no title was intended to or did pass to the defendant by the delivery of the' check. The money represented by the check was turned over to the defendant to purchase property for the Robert P. Hansen Company, and the defendant was only a conduit through which the money passed to accomplish that object. It was never contemplated that the defendant should have more than the possession of the company’s money for the purpose of making the purchase of the stock. There was no intent that the defendant should become the owner of the money upon receiving the checks. He was to use it in the purchase of property for the Robert P. Hansen Company. On the other hand, the defendant by means of false and fraudulent representations was able to get possession of the money, and after obtaining possession but not title he converted it to his own use — an offense of larceny clearly covered by the statute. The general rule of law is that if through fraud one obtains title as well as possession 'to money he is guilty of obtaining money under false pretenses. If through fraud he obtains possession of money and then converts it to his own use he is guilty of larceny, and if he is lawfully in possession of money and then converts it to his own use he is guilty of embezzlement. Whether the latter offense is punishable under sec. 4415 it is not necessary to decide. The statute seems to make no distinction between possession obtained lawfully and possession obtained through fraud or otherwise unlawfully. It seems to include all bailees. In this case, however, the possession of the money was obtained by fraud, and under both the statute and the decisions the offense constituted larceny.

We answer the first question, Yes.

The second question reported is: “If the court is of the opinion that the defendant can be sentenced under sec. 4415, then it is desired that this question be answered: Of -the *647moneys converted by the defendant $5,000 was converted December 12, 1923, and $8,347.34 was converted on the 18th day of March, 1924. Should the court sentence the defendant for larceny of $13,347.34, or the larceny of $8,347.34, or the larceny of $5,000?”

Sec. 4667, Stats. 1923, provides that:

“In any prosecution for the offense of embezzling under section 4418 or for larceny as a bailee under section 4415 it shall be sufficient to allege generally in the indictment or information an embezzlement or larceny of money to a certain amount or of property to a certain value, without specifying any particulars of any such embezzlement or larceny, and on the trial evidence may be given of any such embezzlement or larceny committed within six months next after the time stated in the indictment or information; and it shall be sufficient to maintain the charge in the indictment or information and shall not be deemed a variance if it shall be proved that any money or property, of whatever amount, was fraudulently embezzled by the defendant within the said period of six months.”

The provisions of the statute require that the defendant should be sentenced for the larceny of $13,347.34, and such is our answer to the second question.

A motion for a rehearing was denied, without costs, on April 22, 1926.