Golonbieski v. State

• Decision Date: 22 November 1898
• Citation: 77 N.W. 189,101 Wis. 333
• Parties: GOLONBIESKI v. STATE.
• Court: Wisconsin Supreme Court

101 Wis. 333

77 N.W. 189

GOLONBIESKI

v.STATE.

Supreme Court of Wisconsin.

Nov. 22, 1898.

Error to circuit court, Clark county; W. F. Bailey, Judge.

Joseph Golonbieski was convicted of larceny, and he brings error. Affirmed.L. M. Sturdevant, for plaintiff in error.

The Attorney General, for the State.

CASSODAY, C. J.

The plaintiff in error was convicted of the offense prescribed in the statute which declares “that any person who shall willfully sever from the land of another any timber or trees standing or growing thereon and shall take and convert the same or any part thereof to his own use, shall be deemed guilty of larceny in the same manner and of the same degree as if the property so taken and converted had been severed at some previous and different time and shall be punished in the manner provided in section 4415 of chapter 182 of the Revised Statutes of 1878, for larcenies of property of the same value.” Chapter 170, Laws 1881, as amended by chapter 397, Laws 1889, being section 4415a, Sanb. & B. Ann. St. The information charged that the plaintiff in error did on March 5, 1897, unlawfully and willfully sever from the soil or land owned by the Sterling Lumber Company, therein described, 4 standing birch trees, 7 standing elm trees, and 57 standing basswood trees, then and there standing thereon, and all of the value of $50, the property of the said Sterling Lumber Company, a corporation organized under the laws of the state of Wisconsin, and taking and converting the same to his own use, against the peace and dignity of the state of Wisconsin. Error is assigned because the original information alleged that the land belonged to the “Northwestern Lumber Company,” but it was amended upon the trial by striking out those words, and inserting in lieu thereof Sterling Lumber Company. The statute expressly authorized such amendment in the name of the ownership of the property, since such variance between the information and the proof was not material to the merits of the case. Rev. St. § 4703; Baker v. State, 88 Wis. 141, 154-156, 59 N. W. 570;Jackson v. State, 91 Wis. 261, 262, 64 N. W. 838. There was no error in allowing such an amendment.

2. Nor was there any error in charging the jury, substantially in the language of the statute quoted, to the effect that if the evidence satisfied their minds beyond a reasonable doubt that the defendant willfully severed, from the soil of the lands described in the complaint, timber growing thereon, and converted the same to his own use, then they should find a verdict of guilty. Fischer v. State (Wis.) 76 N. W. 594.

3. Counsel for plaintiff in error contends that chapter 170, Laws 1881, as amended by chapter 397, Laws 1889, being section 4415a, Sanb. & B. Ann. St., was not in force when the offense charged was committed. This contention seems to be upon the ground that chapter 170, Laws 1881, was repealed by chapter 99, Laws 1887; and hence that chapter 397, Laws 1889, purporting to amend chapter 170, Laws 1881, was inoperative. There are two complete answers to such contention. One is that chapter 99, Laws 1887, does not purport to repeal, alter, or amend chapter 170, Laws 1881, and had no such effect, but was for another and different purpose. Another answer is that, even if it had been repealed, yet as chapter 397, Laws 1889, purports to amend it so as to read as quoted, the same would, necessarily, have given it new life and existence from the time of such last enactment, which was several years prior to the commission of the offense in question. The same statute is now preserved in section 4449a, St. 1898.

4. Error is assigned on the ground that there is no proof that the Sterling Lumber Company had, in fact, been incorporated. The material fact to be proved was that the timber severed from the soil belonged to some one other than the accused. The offense was the same whether the timber was in fact owned by an individual, a...