135 Wis. 6 | Wis. | 1908
Lead Opinion
The following opinion was filed January 8, 1908:
There is evidence tending to show that tbe defendant Yought and McDonald were members of tbe board of supervisors of the town of Morse, Ashland county, and Collins chairman of tbe board, Peter Eisbbacb highway commissioner, and Templin town clerk; that on the 1st day of November, 1902, the town board was in session doing its regular business and passing upon claims presented against the town; that during the proceedings and before the completion of their work it was suggested by one of the members that it was about time they were having another rake-off, and for the purpose of carrying out this scheme and fraudulently obtaining money for each of the five parties concerned, namely, the three members of the board, the clerk, and highway commissioner, it was proposed to present claims in names of fictitious persons and have them allowed, orders issued therefor, and the money collected and distributed among the parties; that defendant Yought took an active part in the scheme, whereupon seven fictitious names were presented by the members of the town board, the clerk, and the commissioner of highways, and claims for alleged road work entered in their favor, varying in amounts from $35 to $40.25.
State v. Wilson, 3 McCord, 187, is where two persons were indicted together for stealing the same goods, and it was held that one could not be convicted of grand and the other of petit larceny. The court said that two persons equally concerned in stealing the same article could not be guilty of different offenses; that the jury could not value the property at one price in the hands of one man and at another in the hands of another, who were equally concerned in the same transaction, for the purpose of subjecting one to a greater punishment than the other. State v. Jackson, 7 S. C. 283, was where A. and B. were indicted for conspiracy. Both appeared and pleaded to the indictment. B. was put upon trial and A. used as a witness for the state. After the jury retired a nolle was entered as to A. and a verdict of guilty rendered as to B. It was held that judgment could not be pronounced on the verdict, since it would amount to convicting one of conspiracy, and'a conspiracy implies a combination between two or more. State v. Tom, 13 N. C. (2 Dev. Law) 569, and Rex v. Plummer, [1902] 2 K. B. 339, are conspiracy cases. Comm. v. Edwards, 135 Pa. St. 474, 19 Atl. 1064, turned on the construction of a statute relating to costs. Delany v. People, 10 Mich. 241, was a case of lewd and lascivious cohabitation under a statute making
It will be seen that tbe foregoing cases cited by counsel for defendant Vought are not in point and do not help bis .contention. In case of adultery it bas been beld that one participant may be convicted and tbe other acquitted. Alonzo v. State, 15 Tex. App. 378, citing 2 Whart. Crim. Law, §§ 1124, 1130, and State v. Caldwell, 8 Baxt. 516. But we regard it unnecessary to prolong discussion upon this point. We think it entirely clear that tbe verdict of not guilty as to Collins and McDonald in no way interfered with tbe conviction of Vought.
“Any person who shall commit tbe crime of larceny by stealing tbe property of another, any money, goods or chattels, or any bank note, bond, promissory note, bill of exchange, order, certificate, book of account, conveyance of real estate, bill of sale, mortgage, valuable contract, receipt, release, defeasance, railroad passenger’ticket, ticket of admission to any place, any writ, process, public record, or any instrument in writing whereby any demand, right or obligation is created, increased, diminished or extinguished or any personal property whatever, if the value thereof shall exceed one hundred dollars, shall, unless it be otherwise provided in these statutes as to some particular offense, be punished by imprisonment in the state prison not more than five years nor less than one year. ...”
“The argument that the city of Milwaukee may not be liable to the holders of the bonds fraudulently converted by the defendant — an argument which may or may not be a sound one, and the determination of which, one way or the other, may depend very much upon the court in which the action to enforce the payment thereof may be brought — does not seem to us a sufficient reason for holding the defendant not guilty of a crime in converting them. To him the bonds were just as good as though they had been regularly issued. He received the same compensation that he would have received had they been regularly issued; and it would seem to be just that he should not now be heard to say they were merely waste paper. If the person who purchased them of him shall fail to recover on them against the city, certainly a great injustice has been done to that person; and, though the city may succeed in making a defense, it will be at considerable cost and expenditure, and so far it will be injured by the fraud of the defendant.”
In Norton v. State, 129 Wis. 659, 109 N. W. 531, it was held that a check falsely made with intent to defraud and apparently sufficient on its face is a forgery, even though other steps, such as indorsement by the payee, would be nec
It is further insisted bv counsel for defendant that the orders were not orders at all, but simply waste paper, and created no obligation against the town. They were valid on their face and upon the face of the town records, and valid until set aside or defeated by a judgment establishing their invalidity, which might or might not be accomplished, depending on'the evidence produced and the result of a trial. We think under, the rules laid down by this court in State v. White, supra, and Norton v. State, supra, the orders were the subject of larceny and their value sufficiently established.
Complaint is made by counsel of the “excessive zeal of state’s attorney,” but we find nothing under this head which could have worked any prejudice to the defendant.
Error is also assigned because of alleged erroneous admission of evidence. The most objectionable evidence came in inadvertently and was afterwards stricken out and the jury instructed to disregard it. We find no- prejudicial error-under this head.
After a careful examination of the record we think no prejudicial error was committed, and therefore the judgment must be affirmed.
By the Court. — Judgment affirmed.
Dissenting Opinion
The following opinion was filed January 28, 1908:
(dissenting). I cannot agree with this-decision, because it seems to me that some well-settled principles of the law of larceny have been disregarded. Grand larceny can only be committed by the stealing of personal' property exceeding $20 in value, and the value must be affirmatively proven. The property claimed to have been stolen here was a fictitious town order fraudulently issued to pay no debt and payable to a nonexistent person. It was not authorized by law, but was absolutely void in whosesoever hands, it might be found. Hubbard v. Lyndon, 28 Wis. 674. It was not negotiable. Sec. 1675 — 1, Stats. (Sup-p. 1906; Laws of 1899, ch. 356). It was utterly worthless. The fact that the defendant may have induced some one to believe that it was
I .am authorized to state that Mr. Justice Mahshall concurs in this dissent.
Upon a motion by the plaintiff in error for a rehearing ' there was a. brief by Sanborn, Lamoreux & Pray and PL. B.
Tbe motion was denied March 10, 1908.