Laev v. State
| Decision Date | 07 January 1913 |
| Citation | 152 Wis. 33,139 N.W. 416 |
| Parties | LAEV v. STATE. |
| Court | Wisconsin Supreme Court |
Error to Municipal Court of Milwaukee; A. C. Backus, Judge.
Leopold Laev was convicted of having obtained money by false representations, and he brings error. Affirmed.
The plaintiff in error, hereinafter called the “defendant,” was arrested on a complaint charging him with having obtained by means of false representations and false pretenses the sum of $5,500 of the money and property of the First National Bank of Milwaukee. A preliminary examination was had, at the close of which the examining magistrate found that an offense had been committed and that there was probable cause to believe the defendant guilty, and the defendant was bound over for trial before the municipal court of Milwaukee county. The district attorney filed an informationin the municipal court setting forth in substance the same facts that were alleged in the complaint on which the warrant for the defendant's arrest was issued. The information set forth, among other things, that the defendant on the 1st day of May, 1908, being then and there the secretary of the Wisconsin Knitting Works, a corporation, did unlawfully, knowingly, designedly, and falsely pretend to August W. Bogk, then and there the assistant cashier of the First National Bank of Milwaukee, that said Wisconsin Knitting Works was the owner and holder of accounts receivable of the value of $2,084.39, and of finished merchandise of the value of $3,878.45, and of unfinished merchandise of the value of $1,846.56, and of machinery and fixtures of the value of $5,670.83, and the total liabilities of said corporation amounted to the sum of $882.15 and no more; that defendant asserted that said representations and statements fully and truly represented the correct and true financial condition of said Wisconsin Knitting Works on said date; that defendant further represented that in the event of any change in the financial condition of said corporation notice of such change would be given to said bank; that said Bogk, acting for said bank, and believing said false pretenses so made to be true, and relying thereon, and not having been informed of any change in the financial condition of said corporation, was induced by reason of said false pretenses to deliver and did deliver to said defendant, as secretary of said corporation, the sum of $5,500 in money, the property of said First National Bank of Milwaukee; that said Laev, as secretary of said corporation, did then and there obtain said moneys from said bank by means of false pretenses as aforesaid and with intent to defraud; that said representations were made in writing and signed in the name of the Wisconsin Knitting Works by the defendant in person as secretary thereof, and a copy of such statement is annexed to the information and marked “Exhibit A” and made a part thereof, the same as though specifically set forth; that in truth and in fact the said Wisconsin Knitting Works at the time said statement was made was not the owner of accounts receivable in the amount of $2,084.39, but only in the amount of $1,261.29; that said corporation was not the owner of finished merchandise in the amount of $3,878.45, but only in the amount of $2,205.02; that said corporation was not the owner of unfinished merchandise in the sum of $1,846.56, but only in the sum of $918.60; that said corporation was not the owner of machinery and fixtures of the value of $5,670.83, but only of the value of $2,513.36; that the liabilities of said corporation were $10,960.08, instead of $882.15 as represented in said statement; that said defendant then and there well knew the actual value of said property and the actual amount of the indebtedness of said corporation; and that by means of the false statements so made the defendant did unlawfully, knowingly, and designedly obtain from said bank the sum of money stated.
Exhibit A attached to and made a part of the information shows the value placed by the defendant on the accounts receivable, merchandise, unfinished merchandise, raw material, and machinery and fixtures of said corporation, and also contains a statement of the liabilities of the corporation, the figures in which correspond with those set forth in the information. The exhibit further recites that it is made for the purpose of procuring credit from time to time from the First National Bank on the negotiable paper of the corporation or otherwise. It further recites that it fully and truly sets forth the financial condition of the corporation on the 1st of May, 1908,
After the jury was sworn, and before any testimony was taken, the defendant's counsel objected to any testimony being received under section 4438h, being chapter 265, Laws of 1905, for the reason that the information was based on sections 4422 and 4423, Stats. 1898. In reference to this objection the district attorney stated that the charge came under section 4438h. After the state rested a motion was made to discharge the defendant. This motion was denied, and the district attorney was permitted to amend the information so as to charge an offense under section 4438h. The only question submitted to the jury was whether such an offense had been committed, and a verdict of guilty was returned on this charge. From a judgment entered on this verdict, the defendant brings the case to this court for review on a writ of error.
McGee & Jeger and Carpenter & Poss, all of Milwaukee, for plaintiff in error.
L. H. Bancroft, Atty. Gen., Russell Jackson, Deputy Atty. Gen., W. C. Zabel, Dist. Atty., of Milwaukee County, and Andrew Gilbertson, Asst. Dist. Atty., of Milwaukee County, for the State.
BARNES, J. (after stating the facts as above).
[1] Section 4423, Stats. 1898, provides: “Any person who shall designedly, by any false pretenses, * * * and with intent to defraud, obtain from any other person any money, goods, wares, merchandise or other property * * * shall be punished,” etc. Section 4438h, Stats. (Laws of 1905, c. 265), provides: “Any person who shall designedly make any false statements in writing in reference to his assets or liabilities, or both, or the assets or liabilities of any corporation of which he is an officer or employé, for the purpose of procuring credit in any form, or for the purpose of procuring any extension of credit already given, shall be punished,” etc. The maximum penalty for a violation of section 4423 is five years' imprisonment in the state prison, and for a violation of section 4438h it is three years in such prison.
The defendant was informed against under section 4423, and after the state rested its case it was permitted to amend the information so as to specifically charge an offense under section 4438h. The defendant urges that these two statutes deal with separate and distinct crimes not of the same nature, and that neither section 4703, nor any other statute, permits an amendment of an information during the trial so as to charge the defendant with a different offense from that for which he was placed on trial. The state contends that the court had power to permit the amendment, and, further, that it was immaterial whether the amendment was made or not, because the jury might convict the defendant of an offense under section 4438h upon the information drawn under section 4423. If this latter contention of the state is correct, it goes far toward disposing of three of the errors most strenuously relied on for a reversal.
The substance of the information is given in the statement of facts. It will be observed that it sets forth that the defendant designedly made false statements in writing with reference to the assets and liabilities of the corporation of which he was an officer, for the purpose of procuring credit from the First National Bank of Milwaukee, and that by means of such false representations he secured funds from the bank to the amount of $5,500. This information charges every fact necessary to state an offense under section 4438h. It informed the defendant that the state expected to prove an offense under section 4423, by showing, among other things, that false statements in writing as to assets and liabilities had been designedly made for the purpose of procuring credit, and that not only had credit been extended on the strength of such representations, but that the bank...
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