Bartz v. State

• Decision Date: 06 December 1938
• Citation: 282 N.W. 562,229 Wis. 522
• Parties: BARTZ v. STATE.
• Court: Wisconsin Supreme Court

229 Wis. 522

282 N.W. 562

BARTZ

v.STATE.

Supreme Court of Wisconsin.

Dec. 6, 1938.

Error to review a judgment of the Circuit Court for Waushara County; Byron B. Park, Judge.

Reversed.

H. F. Bartz, plaintiff in error, was convicted by a jury on each of six counts of an information and sentenced by the court to imprisonment in the State's prison for a term of from one to ten years on each of four of the counts and to pay a fine of $10 on each of two. A. A. Gibbs was charged in the information with him. Gibbs plead guilty and testified upon the trial. The action was commenced April 25, 1938, and sentence imposed October 10, 1938.

John A. Conant, of Westfield, for plaintiff in error.

Orland S. Loomis, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., Earl F. Kileen, Dist. Atty., of Wautoma, and M. S. King, Sp. Asst. Dist. Atty., of Wisconsin Rapids, for defendant in error.

FOWLER, Justice.

The plaintiff in error, who will be hereinafter referred to as the defendant, was for over forty years a storekeeper in the village of Coloma and president of the Coloma State Bank from its organization in 1920 until it closed. The active management of the bank was in the hands of its cashier. The co–defendant Gibbs became cashier in 1928. For a short time, after Gibbs was removed as cashier, the defendant was nominally both president and cashier, but Gibbs continued as bookkeeper and continued to run the bank as theretofore until another cashier was chosen. The transactions involved herein occurred during the time Gibbs was so acting either as cashier or bookkeeper.

The first count of the information charges the defendants with embezzling $2,667.28 of funds of the Coloma State Bank; the second with making a false entry in the bank's books whereby instead of entering a certificate of deposit for $3,500 payable to Gust Wabaschal from which the $2,667.28 was embezzled the defendants entered a certificate of deposit for $1 payable to Harry Gibbs; the third with embezzling $1,000 of the funds of the bank; the fourth, with making false entries on the bank's books to cover the $1,000 embezzlement; the fifth with criminal conspiracy in issuing the $3,500 certificate of deposit involved in the first count; and the sixth with criminal conspiracy in issuing a $1,000 certificate of deposit in connection with the embezzlement involved in the third count.

The only error assigned by the defendant is the admission in evidence, over objection by defendant's counsel, on the trial of the case before the jury, of a writing in terms as follows, referring to defendant's conduct as town treasurer: “Mr. Bartz had admitted to the Town Board that the amount of $876.39 was taxes collected in cash and used for own personal use. He has also admitted that all the funds for taxes collected, which is evident, was not deposited on the Town's Bank Account.” Signed–“H. F. Bartz.” To the left: “Witnesses to above statement: George Myhill, A. E. Chatfield, Ed. Kruger.”

This writing was not only read to the jury but was commented on by the district attorney in argument to the jury, and sent into the jury room for consideration by the jury in their deliberations.

[1][2][3] It appears manifest that the...