Spoo v. State

• Decision Date: 08 October 1935
• Citation: 262 N.W. 696,219 Wis. 285
• Parties: SPOO v. STATE.
• Court: Wisconsin Supreme Court

219 Wis. 285

262 N.W. 696

SPOO

v.STATE.

Supreme Court of Wisconsin.

Oct. 8, 1935.

Error to the Circuit Court for Green Lake County; C. F. Van Pelt, Circuit Judge.

Hank F. Spoo was convicted of obtaining $20 in money by false pretenses, and he brings error, the court having ascertained that defendant previously had been convicted of a felony.--[By Editorial Staff.]

Affirmed.

Criminal action by the state of Wisconsin against Hank F. Spoo. Judgment of conviction was entered. By writ of error the defendant brings up the record for review.

Gooding & Gooding, of Fond du Lac, for plaintiff in error.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Robert P. Stebbins, Dist. Atty., of Green Lake, for defendant in error.

FOWLER, Justice.

The defendant was charged in the language of the statute, section 343.25, with obtaining $20 in money by false pretenses. He pleaded guilty. After the plea was entered, the court ascertained that he had previously been convicted of a felony and under the repeater statute, section 359.13, imposed a sentence of not less than one or more than five years. The information did not charge the prior conviction, nor did the district attorney in writing charge the defendant with it after the fact was ascertained. The penalty for obtaining less than $100 in violation of the false pretense statute is imprisonment in the state prison or county jail for not more than one year or by a fine of $100. The defendant was not represented by counsel.

The defendant claims that the court was without jurisdiction to impose any sentence because the information does not state any offense, and bases the contention that no offense is stated in the information because, as he claims, in pleading under the false pretense statute it is necessary to set out the specific representation claimed to have been made, and to charge that it was false, that it was relied on by the person defrauded, and that such person was induced by the representation to part with his money, and cites State v. Green, 7 Wis. 676, and Owens v. State, 83 Wis. 496, 53 N. W. 736, 737, in support of his contention.

In the former case a motion was made in arrest of judgment after verdict for the reason that the indictment did not state any offense. No objection to the indictment had theretofore been made. The trial judge certified the case to the Supreme Court for determination of the questions raised by the motion. The general charge made in the indictment was that the defendant falsely pretended that he was a merchant in the city of New Orleans and that he had money to the amount of $250 belonging to him on deposit with a bank, which statements were expressly negatived as false, and that with intent to cheat and defraud the makers of the check he unlawfully and designedly obtained from them their check for the sum and of the value of $251.25. The court ruled that these “bald naked statements” were “too general and uncertain to constitute an offense” under the statute, which was then the same as now. There is also a statement in the opinion that without a statement that the makers were induced by reliance on the representations to deliver their check to the defendant, the indictment would not state an offense at common law, and this would seem to imply that the court considered that it did not state an offense under the statute. However, this statement has been overruled in Davis v. State, 134 Wis. 632, 115 N. W. 150, and the opinion in the latter case seems to imply that under section 355.33, Stats., a statute enacted after the decision of the Green Case, supra, an information under any statute in the language of the statute is sufficient, and no reason is perceived why this is not sound. If such an information does not, in the language of the opinion in Finsky v. State, 176 Wis. 481, 485, 187 N. W. 201, 202, referred to later herein, so “individuate” the offense as to afford proper notice to the defendant of just what he is charged with, a motion to make it more definite and certain would seem sufficient to secure to the defendant adequate notice in any desired respect, and to afford him adequate relief. The principal point of the Green Case seems to be that the evidence shows that the defendant sold the makers of the check a draft, for the amount stated, and that the draft, not the statements, was the “decisive inducement,” the real false pretense, that caused them to part with their property and constituted the substantive part of the offense, and “should have been set forth in the indictment.” The opinion closes with the statement that the defendant ought not to have been convicted and the conviction was set aside and the defendant discharged.

In the Owens Case, supra, the defendant was charged with specific representations and that thereby he obtained from one Newman $400 of the property of a specified bank. The information was held “fatally defective” for not stating that Newman was the agent of the bank. The defendant had been convicted by a jury, sentence had been imposed, and the defendant imprisoned pursuant to the sentence, and this court directed that he be taken before the trial court to be discharged.

As above stated, section 355.33, Stats., did not exist when the Green Case was decided, and the Owens Case was decided without any mention of that statute, and presumably without any consideration of it. The defendant points out that it is stated in Finsky v. State, supra, wherein that statute was involved, that while it is sufficient to charge unlawful possession of intoxicating liquor in the language of the statute, it is not sufficient to charge the offense of obtaining money or goods by false pretenses, because the general statutory statement does not so “individuate the offense that the offender has proper notice * * * of [what] the offense he is to be held for really is,” and that the same is true in charging libel and using language tending to provoke an assault, basing the statement on the prior decisions of this court above cited and Steuer v. State, 59 Wis. 472, 18 N. W. 433, a case under the statute creating the offense of using language of the nature above stated.

[1][2][3] The state contends that these rulings are out of line with later decisions of this court and ought not for that reason to be followed. The Owens Case, supra, was decided in 1892 and that is some time back, but the ruling of it was inferentially at least approved in the Finsky Case in 1922, and that approval is quite within the period during which the court has, as counsel claims, abrogated many ancient technicalities of practice that formerly served to enable the guilty to avoid punishment for their offenses. To the writer, the discharge in both the Green and Owens Cases seems absurd. In both, the proofs showed the defendant to have been clearly guilty under the statute for violation of which he was tried. In the one case by falsely representing that he had funds on deposit to cover a draft which he gave to the drawer of a check he had procured a check and cashed it. No objection was made until after the verdict and a finding of guilty. In this situation the information would today be amended...