Brockman v. State
| Decision Date | 11 January 1927 |
| Citation | 211 N.W. 936,192 Wis. 15 |
| Parties | BROCKMAN v. STATE. |
| Court | Wisconsin Supreme Court |
Error to Municipal Court of Milwaukee County; George A. Shaughnessy, Judge.
Helen Brockman was convicted of larceny by trick, and she brings error. Reversed.--[By Editorial Staff.]
Mrs. Brockman, defendant below, abandoned by her husband, lived with her 17 year old daughter by a prior husband on a lot held under land contract at St. Francis, a suburb of Milwaukee, said county. One Meyer, about 77 years old, answered by letter her advertisement in a Milwaukee German newspaper to the effect:
etc.
Defendant called on him in his absence. The daughter subsequently came and accompanied him to defendant's house. Here they discussed the loan of $300, the giving of some security for it, said to be at a bank, and his boarding there at $5 to $9 per week, but no definite terms for such were made. He returned on May 7th, gave her $300 cash, and received her 6 per cent. six months promissory note for that amount. May 9th she wrote him not to come for several days, and later told him not to come at all. He inquired at the bank and was told she had no money or property there. June 7th he demanded the return of his money and was refused. Defendant was brought to the office of the district attorney, admitted placing the advertisement, that she had intended to give security, promised to repay, but failed to do so.
July 1st she was charged with the larceny of the $300 and bound over. On trial before the court below, she waiving a jury, the district attorney, over defendant's objection, was permitted to amend the information so as to charge “larceny by trick,” but no written amendment was made or filed.
Defendant was found guilty as charged in the amended information, sentence was suspended for one year, and she placed on probation for such term. After denial of a new trial defendant seeks to review.Alfred C. Loose, of Milwaukee (Leo J. Topolinski, of Milwaukee, of counsel), for plaintiff in error.
Herman L. Ekern, Atty. Gen., and Eugene Wegert, Dist. Atty., and C. Stanley Perry, Asst. Dist. Atty., both of Milwaukee, for the State.
[1] It is conceded that the attempt to amend the information charging “larceny” to one charging “larceny by trick” was of no effect, there being no statute providing for “larceny by trick” as distinguishable from “larceny.” The conviction must be sustained, if at all, under section 343.17, Stats., relating to larceny and providing in substance for the punishment of “any person, who shall commit the crime of larceny by stealing the property of another.” The words “larceny” and “stealing” are not defined in this statute, but the term “property” is expressly made to cover the field of money, goods, and chattels (many specific kinds whereof being therein enumerated), and it includes also the wrongful diversion or use of gas, water, steam, or electricity. By chapter 278 of 1887 this statute was amended so as to include as larceny the fraudulent taking or converting of any chattel, money, or valuable security by a bailee, thereby covering as larceny that which would be clearly embezzlement or conversion by a bailee. See Vought v. State, 135 Wis. 6, 15, 114 N. W. 518, 646, 32 L. R. A. (N. S.) 234, 128 Am. St. Rep. 1008;Burns v. State, 145 Wis. 373, 382, 128 N. W. 987, 140 Am. St. Rep. 1081. Separate and specific statutes cover larceny of lead pipe or in buildings (section 343.14); from the person (section 343.15); at fires (section 343.16); of cranberries (section 343.171); of property in the nature of realty (section 343.172); of birds, dogs or beasts not the subject of larceny at common law (section 343.173).
The obtaining of money or other property “by any false pretenses or by any privy or false token and with intent to defraud” is the subject-matter of still another specific statute. Section 343.25. The phrase “trick,” as used here in the amendment to the information and upon which defendant was found guilty, would clearly be within the meaning of the above-quoted terms used in the false pretense statute.
This substantial distinction between the statutory offenses of larceny and of obtaining money by false pretenses has always existed in this state. In the Revised Statutes of 1849 simple larceny appeared as section 15, and false pretenses as section 33, in chapter 134, and such differentiation has been constantly preserved. In State v. Kube, 20 Wis. 217, it was said (page 220, 91 Am. Dec. 390), citing Greenleaf on Evidence, that if the owner intended to part absolutely with his property it is within the false pretense statute; if he intended to retain ownership and to part with temporary possession for a specific purpose only it may be larceny. The same thing is said in State v. Loser, 132 Iowa, 419, 427, 104 N. W. 337;People v. Grider, 13 Cal. App. 703, 110 P. 586;Comm. v. Althause, 207 Mass. 32, 93 N. E. 202, 31 L. R. A. (N. S.) 999; Russell on Crimes (8th Ed.) vol. 2, p. 1124--all to the effect that if through fraudulent representations there is the intent to pass the title to property there is no larceny.
[2] In this case there was evidently a present intention by Meyer that the defendant should have the money and the use of it for her own purposes; it was not intended to apply as to future payments, for his board or his having a home; there were no future conditions to be fulfilled or performed before defendant could have the use of the money. Meyer intended that defendant might then use as well as have the money, however much he may have been induced by fraud, artifice, or trick to come into that frame of mind. An essential element that ...
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