Davis v. State

• Decision Date: 18 February 1908
• Citation: 115 N.W. 150,134 Wis. 632
• Parties: DAVIS v. STATE.
• Court: Wisconsin Supreme Court

134 Wis. 632

115 N.W. 150

DAVIS

v.STATE.

Supreme Court of Wisconsin.

Feb. 18, 1908.

Error to Municipal Court, Eastern District, of Waukesha County; C. E. Armin, Judge.

H. A. Davis was convicted of obtaining money by false pretenses, and brings error. Affirmed.

The plaintiff in error, who was the defendant in the court below, and who will hereinafter be referred to as defendant, was convicted by the municipal court for the Eastern district of Waukesha county, under section 4423 of the Wisconsin Statutes of 1898, for obtaining money from one M. J. Wolf by false pretenses. The information charges in substance that the defendant, at the time stated, at the city of Waukesha, in the county of Waukesha, and in said municipal district, did unlawfully, knowingly, and falsely pretend to M. J. Wolf that he, H. J. Davis, had been engaged by one W. J. Lemon, rector of St. Mathias' Episcopal Church, at said city of Waukesha, to solicit, receive, and collect for advertisements for a church program for said church, and did then and there solicit and receive from said Wolf an advertisement for said program, and collect therefor, as the price of said advertisement, the sum of $1.50 good and lawful money of the United States of America, “by means of which false pretenses aforesaid the said H. A. Davis did then and there unlawfully, knowingly, and designedly obtain from said M. J. Wolf money of the value of one dollar and fifty cents ($1.50) good and lawful money of the United States of America, of the moneys of him, the said M. J. Wolf, with intent then and there to defraud him, the said M. J. Wolf.” It then denies that said Davis had been engaged to solicit, receive, or collect for advertisements for such a program. The information then separately charges that the defendant had been convicted in said municipal court of having at the time and place stated unlawfully obtained food and accommodation at a certain hotel named without paying therefor, there being no express agreement as to credit with intent to defraud the proprietor of the hotel; that upon such conviction the defendant had been duly sentenced to pay a fine and the costs of the prosecution, and in default of payment that he be imprisoned in the county jail for the term stated; and that such conviction remains of record and unreversed.

After a witness had been sworn, and before the introduction of any evidence, the defendant objected to the introduction of any evidence under the information, for the reason that it did not state facts sufficient to constitute a cause of action, which objection was overruled. At the close of the testimony for the state the defendant moved the court, upon the record and testimony taken, to direct a verdict of not guilty, which motion was also overruled. The record of the prior conviction was admitted in evidence. The defendant offered no evidence, and the judge gave the charge to the jury. The exception to the charge, and to the refusal of the court to give certain instructions as requested, will be referred to in the opinion. The jury retired with two forms of verdict; one to find the defendant guilty on two counts in the information, separately, and one to find the defendant not guilty. When the jury returned, they announced that they had agreed on a verdict, and had apparently signed both verdicts, one of guilty and one of not guilty; and the court told the jury that the effect of their verdict was to find the defendant not guilty. Thereupon the foreman announced that such was not their intention, and the jury retired to further consider a verdict, under objection of defendant. The jury returned thereafter a verdict of guilty upon both counts of the information. The defendant made a motion in arrest of judgment and for a new trial, both of which were overruled, and the defendant was sentenced to the state prison for one year. The case was brought to this court on a writ of error.D. J. Hemlock, for plaintiff in error.

Frank L. Gilbert, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

BASHFORD, J. (after stating the facts as above).

The defendant was convicted in the municipal court for the Eastern district of Waukesha county, under section 4423 of the Wisconsin Statutes of 1898, for obtaining money under false pretenses, and also of having been convicted for a former offense, subjecting him to the increased penalty imposed by statute in such cases, as charged by the information. The case is brought here upon a writ of error, and the assignments of error that are deemed material will be considered in the order presented.

The sufficiency of the first count of the information is challenged upon three grounds, the last of which only need be considered. The contention is made that the information is insufficient because it does not allege that “M. J. Wolf, relying upon the false pretenses used and believing them to be true,” parted with his money. To support this position the learned counsel for defendant especially relies upon State v. Green, 7 Wis. 676, and State v. Kube, 20 Wis. 229, 91 Am. Dec. 390. The court in State v. Green, in considering the language of the statute creating the offense of obtaining money under false pretenses, strongly intimates that an indictment is not sufficient without an averment that the party defrauded was induced to part with his property by relying upon the truth of the false statements. The rule there suggested receives the qualified approval of the court in State v. Kube, 20 Wis. 229, 91 Am. Dec. 390. State v. Green is referred to in Steuer v. State, 59 Wis. 472, 476, 18 N. W. 433, as holding “that in an indictment or complaint for obtaining goods under false pretenses it is necessary to set out the pretenses used, as well as the other facts which constitute the offense.” It is submitted that this information did comply with that requirement, and it conforms with precedents generally recognized. 2 Archbold's Criminal Practice and Procedure, p. 1376; Wharton's Criminal Law p. 239. But, conceding that State v. Green fully supports the position of defendant's counsel and establishes the strict rule of pleading which is contended for, it cannot prevail as against the procedure prescribed in section 4669 of Wisconsin Statutes of 1898. That section provides that when the offense charged has been created by any statute, or the punishment of such offense has been declared by any statute, the information shall, after verdict, be held sufficient if it describes the offense in the words of the statute, or in words of substantially the same meaning; “and words used in the statutes to define a public offense need not be strictly pursued in charging an offense under such statutes, but other words conveying the same meaning may be used.” This statutory rule for the construction of pleadings was enacted as section 20, c. 137, p. 206, Laws of 1871, when provision was first made for trial of criminal offenses upon information, and after the decisions of State v. Green and State v. Kube, above referred to. The defects of a criminal complaint were under consideration in State ex rel. McKay v. Curtis, 130 Wis. 357, 110 N. W. 189, and the rule applicable here was there stated. It is said (page 365 of 130 Wis., page 192 of 110 N. W.): “Defects or imperfections in matters of form at any stage of the proceedings which do not tend to prejudice the defendant are to be disregarded”––citing section 4658 and section 4659, St. 1898. Section 4706 authorizes the court to disregard the variance between the statement in the information and the proof where the same is not material to the case. Whether there is an amendment to this information or not, the provisions of the foregoing statutes apply. We must therefore hold that there was no reversible error of the court with respect to this ruling.

The sufficiency of the second count is challenged upon the ground that it does not use the language of section 4737 of the Wisconsin Statutes of 1898, which provides for additional punishment for former offenses when “such sentence remains of record and unreversed”; the words of the information being that “such conviction remains of record and unreversed.” The information does allege that the defendant had been convicted and sentenced for the former offense, and this is supported by the record that was properly received in evidence. There was no claim that this sentence had been set aside, and the mistake in the use of the word “conviction” in the language which follows, instead of “sentence,” while not to be approved, cannot be held reversible error under the statutes above referred to. We do not overlook the legal distinction between the word “sentence” and the word “conviction,” as a conviction may stand and the sentence be set aside and another sentence pronounced. The term “conviction” is used in common language, and sometimes in the statutes, in two different senses. “In its most common use it signifies the finding of the jury that the person is guilty; but it is frequently used as implying a judgment and sentence of the court upon a verdict or confession of guilt.” Commonwealth v. Gorham, 99 Mass. 420, 422. The term as used in this information could not have affected the defendant, and the ruling of the court upon this question is not reversible error. This information meets the constitutional requirement that...