Koetting v. State

• Decision Date: 23 October 1894
• Citation: 88 Wis. 502,60 N.W. 822
• Parties: KOETTING v. STATE.
• Court: Wisconsin Supreme Court

88 Wis. 502

60 N.W. 822

KOETTING

v.STATE.

Supreme Court of Wisconsin.

Oct. 23, 1894.

Error to municipal court, Milwaukee county; George Clementson, Judge.

John B. Koetting, cashier of the South Side Savings Bank of Milwaukee, was convicted of receiving a deposit knowing that the bank was unsafe and insolvent, and brings error. Reversed.

Winslow, J., dissenting.

Cassoday and Newman, JJ., dissenting.

Williams & May, for plaintiff in error.

J. L. O'Connor, Atty. Gen., L. Hammel, Dist. Atty., and Jared Thompson, Asst. Dist. Atty., for the State.

ORTON, C. J.

A great many errors are assigned for the reversal of the judgment of conviction in this case, and they have been urged before this court by the learned counsel of the plaintiff in error, and defended by the learned counsel of the defendant in error, with great zeal and ability. Having arrived at the conclusion that one of the errors assigned is fatal to the conviction, and perhaps also to the information, it becomes unnecessary to consider the others. But the question whether the judge of the Fifth judicial circuit was properly called into the municipal court to try the case is important as one of jurisdiction, and ought to be set at rest in view of other like cases. We therefore thought it our duty to decide it. We have arrived at a decision of this question with some hesitation and doubt. We are greatly aided, however, by the decision of this court in the case of State v. Hirth, 67 Wis. 368, 30 N. W. 353, which settled the law on the question up to that time.

1. In that case it was held that, in case of the application for a change of venue in the same municipal court on account of the prejudice of the judge, in lieu of awarding such change, the court might make an order requesting the circuit judge of an adjoining circuit to hold the court where the action is pending for the trial thereof, by virtue of chapter 218, Laws 1883, which makes such a provision in respect to change of venue in criminal cases pending “in any court of record” of any county in the state. Since then, however, chapter 435, Laws 1887, has been enacted, which provides that in such a case pending in any circuit court the judge of said court may retain the case, and call upon any other circuit judge to attend and hold said court and try the case. Section 2500, Rev. St., as amended by section 2, c. 256, Laws 1879, provides that the general provisions of law relative to circuit courts in cases of crimes and misdemeanors shall be in force in the municipal court of Milwaukee county, so far as applicable. In Biemel v. State, 71 Wis. 444, 37 N. W. 244, it was held that by virtue of this last act chapter 354, Laws 1887, which authorized circuit judges in their discretion to appoint counsel to assist the district attorney in the prosecution of those charged with crime punishable by imprisonment in the state prison, was applicable to the municipal court of Milwaukee county. By this authority we may well hold that by virtue of section 2500, Rev. St., so amended, said chapter 435, Laws 1887, which gives circuit judges the power to call upon any other circuit judge to attend and hold his court in such case, is made applicable to the municipal court of Milwaukee county. We have only stated the effect of these statutes, but we think correctly. This would seem to be conclusive of the question. We are therefore inclined to hold that the calling on Judge Clementson of the Fifth judicial circuit by the judge of the municipal court of Milwaukee county to hold said court for the trial of this case was legal and proper. But the statutes in relation to this matter are in such confusion, if not contradictory, that there is not such certainty as there should be on a question of jurisdiction. The attention of the legislature should be called to this confused and doubtful state of the law on this important subject, that they may make the law certain on the subject.

2. The fatal error in this case is the want of any evidence to sustain the charge in the information. The charge in the information is that John B. Koetting, as cashier and an officer of the South Side Savings Bank of the city of Milwaukee, on the 21st day of July, 1890, unlawfully, feloniously, and fraudulently did accept and receive in, into, and for, on account and in the name of said bank, on deposit and for safe-keeping, of and from one Charles B. Fritsch, two hundred and fifteen dollars, when he knew or had good reason to know that said bank was unsafe or insolvent. This is the substance of the charge, but the words in italics are exact. The language of the statute (section 4541 Rev. St.) is as follows: “Shall accept or receive on deposit, or for safe keeping, or to loan, from any person, any money,” etc. The offense consists of any one of three acts: First, to accept or receive on deposit any money, etc.; second, to accept or receive, for safe-keeping, any money, etc.; third, to accept or receive, to loan, any money, etc. These provisions relateto money “and to bills, notes, and other paper circulating as money.” The other part of the section relates to notes, drafts, bills of exchange, bank checks, and other commercial paper. To accept or receive any of these into the bank for safe-keeping or for collection, knowing the bank to be unsafe or insolvent, is also made a crime, but these are immaterial to this information. The only argument of the learned district attorney to sustain the conviction on the evidence is that the information charges two acts: First, a deposit of money only and simply; second, a deposit of money for safe-keeping; and that the first was sustained by evidence. In charging two distinct acts, each of which constitutes the crime, each one should be separately charged by the use of all the words essential to constitute the crime. Here there is only one act charged,--one deposit of money, and that one is for safe-keeping. The words “for safe-keeping” clearly qualify the word “deposit” as the character or purpose of the deposit. When several acts are charged conjunctively, they constitute but one offense. State v. Bielby, 21 Wis. 204. To charge that the defendant aided in the escape of J. and R. is one offense. Oleson v. State, 20 Wis. 58. All the facts which constitute the offense must be stated with precision. Fink v. Milwaukee. 17 Wis. 26. “A special deposit is where the whole contract is that the thing shall be ‘safely kept,’ and the identical thing returned to the depositor.” “A deposit is presumed to be general.” “A deposit is general, unless expressly made special or specific.” 1 Morse, Banks, §§ 183-186. When the deposit is a general one, the bank has the right to mingle the money deposited with its own, and treat it as a debt due the depositor. The distinction between a general and special deposit is manifest and material. The same deposit could not be both general and special, and here there is but one deposit, and one kind of deposit, and that was special, because it was for safe-keeping, as that is the definition of a special deposit. The offense should be described with such certainty and exactness that the accused may know what the offense is, and prepare to meet it, and that his conviction may be a bar to another prosecution for the same offense. It is quite clear that the offense charged in the information is of having received the money into the bank on deposit for safe-keeping, and that there is no other offense described or charged.

It seems to be conceded that there was no evidence whatever to prove the offense so described in the information. The court was requested by the defendant's counsel, on the conclusion of the testimony, to direct a verdict of not guilty, upon the ground that there was no evidence whatever of the specific offense contained in the information. The court refused this request. This was error. In Jackson v. State, 55 Wis. 589, 13 N. W. 448, there was no evidence in a case of burglary that William Drake was the owner of the dwelling house as charged in the information, and the judgment was reversed for that reason. Chief Justice Cole said in the opinion that “there was no variance, strictly speaking, but the proof did not go far enough to show that the dwelling was that of William Drake.” So here the proof did not go far enough to show that the money was received into the bank on deposit “for safe-keeping,” or as a special deposit. There was a general deposit proved, and no other. There was an utter failure to prove the offense as charged in the information. The kind and character of the...