172 Wis. 204 | Wis. | 1920
The circumstances out of which this prosecution arises may be stated briefly as follows: The defendant,. August Nell, and Mary Franke associated themselves together for the purpose of managing and conducting a Fourth of July celebration at the village of Neosho in 1917. They advertised that the celebration was to be given for- the benefit of the American Red Cross Association. The cele
The defendant Labwzvi was arrested on a warrant charging him with obtaining money under false pretenses by reason of the facts above set forth. By the institution of habeas corpus proceedings he raised the question of whether the facts above set forth were sufficient to 'constitute the offense of obtaining money under false pretenses, and this court ruled in the affirmative upon that question. State ex rel. Labuwi v. Hathaway, 168 Wis. 518, 170 N. W. 654.
. Upon the trial the state introduced in evidence testimony given by August Nell and Mary Franke upon the so-called John Doe hearing, held January 25, 1918, before J. D. Lyons, justice of the peace, in the village of Neosho. The reception of this evidence by the court was assigned as ground for a new trial. The trial judge concluded that the reception of this evidence constituted error because the statements were made after the purpose of the illegal combination had been accomplished. He held that there was competent evidence in the case upon which a finding might be based that a conspiracy had been entered into and that the declarations were voluntary within the meaning of that term as defined in the law. This appeal, therefore, presents the question of'whether the purpose of the illegal'combination had been accomplished at the time the statements of the' co-conspirators received in evidence were made. A perusal
In Baker v. State, 80 Wis. 416 (50 N. W. 518), at p. 422, it is said:
“A conspiracy to commit an assault or a murder would, of course, be ended when the assault or murder was committed ; but a conspiracy to steal money and divide the proceeds is plainly not at an end until the division takes place, and this view is supported by authority.”
In that case Baker and Perrin were prosecuted for the larceny of $39,000 from the vault of a bank. The evidence tended to show that the arrangement between Baker and Perrin with reference to the disposal of the moneys and drafts found on Baker, and which the state claimed was a part of the money stolen, had not terminated; that there was still something to be done by Baker with the drafts found on him for Perrin’s benefit. The court said:
“If this be true, . . . then it is manifest that the objects*208 of the conspiracy were not fully accomplished at the time of Baker’s arrest. The conspiracy, if there was one, was still pending. Under these views of the law, it is obvious that the evidence as to Perrin’s conversation with Lyon, as to when the mining company expected to have its pay-day, was admissible; also the evidence as to conduct and exclamations of Perrin on the night of the larceny, and with, reference thereto; also his expenditures of money after the larceny; also his conduct at Paeske’s store, on the evening of the larceny.”
We perceive no distinction between the two cases in this respect, and it seems clear that the statements of the co-conspirators h.ere, received in evidence, were properly admitted, for the reason that the conspiracy had not been terminated. The proceeds thereof had not been divided. The trial court, therefore, set aside the verdict.and granted a new trial upon a misunderstanding of the law applicable to the situation.
Defendant contends that even though a new trial should not be granted for the reason stated by the trial judge, nevertheless, if there was a mistrial for other reasons assigned upon the motion for a new trial, the order granting a new trial should not be reversed because the court was in error in granting the motion upon the ground specified. We think this is a correct view of the law, and that if a new trial should have been ordered for any of the reasons assigned as grounds therefor upon the motion -made in the lower court the order should not be reversed. We have therefore examined the other reasons assigned as grounds for a new trial in the lower court. We think that but one merits discussion here.
The jury by its verdict found that the amount of money obtained by the false pretenses was $1,350. The question as to the amount of money received by virtue of the false and fraudulent representations is material only because the statute, sec. 4423, prescribes a greater penalty where the money so obtained exceeds $100. The exact amount 'received is immaterial. The material question is whether the
The celebration was held at a time when the patriotic instincts of the people were thoroughly aroused. The associa
“It was proper [for the jury] to consider the advertised purpose of the celebration, the evidence as to the number of people in attendance and the gross receipts, the fact that the country was at war and the work of the Red Cross, the probable effect upon the ordinary person of an appeal to patriotism at such a time, as well as what was stated by witnesses who, in giving their reasons for attending the celebration, said they were or were not influenced by the advertisements that the proceeds would go to the Red Cross.”
A number of witnesses, not exceeding ten, were called by the state to testify that they patronized the celebration because of these considerations, and they expended in the aggregate the sum of $53.25. We think that the inference is 'beyond reasonable doubt that more than $100 was received from- the vast number of people who patronized the celebration because of the false and fraudulent representations. The evidence, though circumstantial, is strong and convincing.
We think the verdict of the jury is supported by the evidence, was not induced by material error, and that it should stand.
By the Court. — Order appealed from is reversed, and cause remanded with directions to enter judgment upon the verdict.