10 N.W.2d 187 | Wis. | 1943
Alva E. Legg was prosecuted and on a trial by jury found guilty as charged in an information in which it was alleged that on May 29, 1942, he did unlawfully and feloniously, while acting as a bailee of the property of Amanda Swalheim, embezzle and fraudulently convert $170 to his own use without *451
the consent of the owner, Mrs. Swalheim, who had intrusted that money to him for the sole purpose of delivering the same to another person. Pursuant to the verdict, the court adjudged Legg guilty of embezzlement under sec.
"Mrs. Amanda Swalheim has consulted me concerning the money she loaned you for the purpose of purchasing a truck."
All of the details of the transaction between Mrs. Swalheim and Legg were not discussed in the conference between her and the attorney. She told him about sealing up the money in the envelope and where it was to be delivered, but she did not tell him the specific purpose for sending the money to Holtan.
Legg stated to a police officer, who was returning with him from Iowa after his arrest, that he did not take the money that was in the sealed envelope; that the envelope was still on the table when he walked out of Mrs. Swalheim's room; and that if the envelope was taken, it was taken by two fellows who also roomed with her. To another officer Legg stated, after he was returned to Madison, that he received the envelope from Mrs. Swalheim; that the money was to be used to buy a truck and he was to meet another party at Stoughton and go to Iowa to buy the trucks; that while he was eating his breakfast at the west Madison railroad depot, he hung his coat up and, after breakfast, the envelope was missing from his coat; and that he was then afraid to go back to the complainant, so he caught a train and went to Des Moines.
The errors assigned by defendant on this appeal are that the court committed prejudicial error in denying the parts of an instruction, requested by him to be given to the jury, which were to the effect (1) that in order to convict defendant of *453 embezzlement there must be established the conversion of the money with an intent on the part of defendant to defraud Mrs. Swalheim; and (2) that if the evidence showed that she loaned the money to defendant to enable him to acquire a truck in her name or otherwise, and she was to be repaid the money thus loaned or advanced out of earnings from the use of the truck or trucks, then under such circumstances the offense of embezzlement was not committed with respect to the money.
Where the intent on the part of a defendant to defraud the owner of money or property is an essential element, which must be duly established and found by the jury in order to convict a defendant of the crime of embezzlement charged under sec.
"fraudulently appropriated $170 in cash belonging to . . . Amanda Swalheim to his own use. In law, such an appropriation and use is termed embezzlement. You cannot find the defendant guilty, unless you are satisfied, beyond all reasonable doubt, of the following facts, to wit:
"1. That the defendant Alva E. Legg did, on the 29th day of May, 1942, receive from Amanda Swalheim the sum of $170 in cash.
"2. That he received the money for the purpose of delivering the same to Abe Holtan at Stoughton, Dane county, Wisconsin.
"3. That, after so receiving the money, he appropriated or used the money for his own personal use.
"4. That he began to and so appropriated or turned the money to his own use in Dane county, Wisconsin."
In view of those instructions the jury could not convict Legg unless they were duly satisfied, — as is evidenced by the *454
verdict of guilty, — that he received the sum of $170 in cash from Mrs. Swalheim for the purpose of delivering that money to Abe Holtan, and after so receiving that sum he appropriated or used the money so received for such purpose to his own personal use, and began to so appropriate or turn the money to his own personal use in Dane county. The jury's finding of guilt necessarily negatives completely the claims asserted by defendant's conflicting statements to the police officers, that the envelope was missing from his coat while eating breakfast at the railroad depot, and that the envelope was still on the table when he walked out of Mrs. Swalheim's room; and also negatives defendant's claim that the money was a loan to him when Mrs. Swalheim placed the sealed envelope in his custody for the purpose of delivery to Abe Holtan. On the other hand, in view of the verdict returned under the instructions given to the effect stated above, it is clearly evident that the jury was satisfied that the right of property and possession of the specific money placed in Legg's custody for the purpose of delivery by him intact to Holtan was to remain in Mrs. Swalheim; and that in violation of the duty of his special agency in that respect he wrongfully and unlawfully appropriated the money to his own personal use. From such deliberate and intentional conversion to his own use of money of which he was custodian the law infers a fraudulent and felonious intent and when the conversion took place the offense was complete. Lochner v. State,
Moreover, the court's failure to instruct more specifically on the subject of the element of intent to defraud, as defendant requested, was not reversible error because his request in that respect was but part of an entire requested instruction, in which he included the requests that the court instruct (1) that the state was required to establish that defendant fraudulently embezzled or converted the money to his own use in *455
Dane county; and (2) that if the evidence showed that Mrs. Swalheim loaned the money to defendant to enable him to acquire a truck or trucks at Des Moines, in her name or otherwise, or to make a down payment thereon, or if she advanced the money to him under arrangements whereby he was to so acquire a truck or trucks in her name or otherwise, and she was to be repaid the money thus loaned or advanced out of earnings from the use of the truck or trucks, then under such circumstances the offense of embezzlement was not committed with respect to the money. In those two respects the requested instruction was erroneous. Under sec.
Furthermore, as under the uncontradicted evidence, the jury could not honestly have found that the money placed in Legg's custody by Mrs. Swalheim for delivery to Holtan was loaned by her to Legg, the failure of the court to give the requested instruction, the application of which was dependent upon a hypothesis for which there was no basis in the evidence, cannot be considered prejudicial or reversible error. To hold otherwise would be in disregard of the provision in sec. 274.37, Stats.
By the Court. — Judgment affirmed.