McGeever v. State

Decision Date04 November 1941
Citation300 N.W. 485,239 Wis. 87
PartiesMcGEEVER v. STATE.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Writ of error to review a judgment of the Circuit Court for Dane County; Henry P. Hughes, Judge.

Affirmed.

Plaintiff in error, James D. McGeever, was tried on an information charging in one count that on December 22, 1939, he was employed as attorney for Elizabeth Hackett to have the care and custody of $350 belonging to her, and that while so employed he unlawfully and feloniously embezzled and fraudulently converted the $350 to his own use or the use of others than Elizabeth Hackett and without the consent of the owner; and charging in a second count that on June 27, 1940, $155 were likewise placed in his custody and embezzled by him. The jury returned a verdict finding him guilty “in manner and form as charged in the information”; and the court entered judgment approving the conviction and sentencing him to imprisonment. McGeever petitioned for a writ of error to review the judgment.

Henry Lockney, of Waukesha, for plaintiff in error.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Norris E. Maloney, Dist. Atty., and Henry H. Behnke, Asst. Dist. Atty., both of Madison, for defendant in error.

FRITZ, Justice.

The errors assigned by the plaintiff in error, James D. McGeever, are that the court erred (1) in denying his motion to dismiss; (2) in refusing to admit certain evidence; (3) in failing to submit separate verdicts; (4) in refusing to set aside the verdict; and (5) in denying defendant's motion for a new trial.

In January 1938 Elizabeth Hackett, who owned a residence in Madison, subject to a mortgage to the Home Owners' Loan Corporation (hereinafter referred to as HOLC), on which a foreclosure judgment had been entered, retained McGeever as her attorney to get an extension of the redemptionperiod. The court granted an extension for one year on a rental basis of $60 per month, and subsequently for an additional year. In September 1939 HOLC advised her that the extensions were invalid, and subsequently she entered into an agreement under which HOLC agreed to accept $70 per month for six months, and she made the first payment. Thereafter on various occasions, commencing on December 22, 1939, she paid to McGeever money in varying amounts until she had paid $505, for which he gave receipts to her, some of which were marked “For payment to Chicago office of HOLC.” Her testimony is to the effect that as she made those payments they were to be sent to the office of the HOLC in Chicago, in accordance with its agreement to accept $70 per month; and that between September 1939 and March 1940 McGeever informed her as to alleged negotiations and propositions made between him and the Chicago office of HOLC to enable her to redeem the property and continue to occupy it. She received some letters from the HOLC stating that no progress was being made in negotiations and finally stating on March 10, 1940, that the foreclosure proceedings would be resumed. Thereafter the foreclosure proceedings were concluded by a sale of the premises and the confirmation thereof, and finally the HOLC obtained a writ of assistance. On September 1, 1940, she moved to another place which she leased with an agreement to purchase negotiated through George Nichols, a real estate agent. Although McGeever continued to accept such moneys from Miss Hackett in sums totaling at $155, between June 27, 1940, and July 22, 1940, the record shows that he had entered into a stipulation with the counsel for HOLC that if redemption or reinstatement was not accomplished by June 21, 1940, the sale would be confirmed and that a writ of assistance could be issued forthwith with a stay on the writ to July 1, 1940. Miss Hackett testified that it was not until December 30, 1940, that she learned that none of the money paid by her to McGeever to pay to the HOLC had ever been sent to it at Chicago. She then made complaint at the office of the district attorney of Dane county and, after an investigation, a warrant was issued for the arrest of McGeever. Some hours before the actual issuance of the warrant, but after he had been questioned in the district attorney's office, McGeever sent the money by messenger to George Nichols with the instructions that it be turned over by him to Miss Hackett. She testified also that McGeever had told her in the latter part of September 1940 that she was going to receive about $200 from the HOLC to be paid either in twenty monthly payments of $10 or in ten monthly payments of $20. Subsequently, in an explanation made in the district attorney's office, McGeever denied saying that $200 would be returned to Miss Hackett, but stated that he said if it was necessary to pay an increased rental, she could draw on what she had and pay them $10 to $20 a month more. However at the trial McGeever testified that his statement on that point was, “*** it would be possible for us to use $100 or so, 100 or 200, from the accumulated money on hand and if we could secure a substantial extension of her option she could replace that money for the down payment from the income as it came in each month.”

In addition, there are statements and denials by McGeever in his testimony because of which there are conflicts and inconsistencies in the evidence in relation to the above-stated matters and also in other respects, but in a statement given by him at the district attorney's office, during the investigation and prior to the issuance of the warrant, he admitted his intermingling of Miss Hackett's money with the funds of his law firm, McGeever & McGeever, and that her money had been subjected to his use without her knowledge. On cross-examination on the trial, he testified that he had put part of her money in the American Exchange Bank of Madison with his firm's funds, and that he had put the balance in the firm's cash box in the office with other moneys and papers. Subsequently he testified that he was mistaken and that he had no bank account and the firm had no bank account at any time during the period of his transactions with Miss Hackett; and then on cross-examination he again admitted that he intermingled her money with the funds and also that he had used the funds without authority.

[1][2] In view of the facts that appear from the evidence stated above, which the jury could consider credible, and, particularly, in view of McGeever's admissions as to his intermingling of Miss Hackett's moneys with other funds, and his unauthorized and unlawful use thereof for his own purposes without her knowledge or consent, the jury was well warranted in finding him guilty beyond a reasonable doubt of the fraudulent conversion and embezzlement of the $505 in question. Such unauthorized intermingling and use of her money by McGeever for his own use and benefit, and otherwise than for the purpose for which it was left by her in his possession and received by him, admitted finding that there existed a fraudulent intent on his part to convert the money to his own use and thus defraud Miss Hackett at the time of the unauthorized intermingling and use. As we said in State v. Kuenzli, 208 Wis. 340, 242 N.W. 147, 149, “the deposit and subsequent use of the funds by defendant for his own benefit may properly form the basis for an inference of felonious intent. If such an intent did exist at the time of those acts, even a contemporaneous intent to pay back the money at a later time would be of no legal consequence.”

[3][4] One may convert money of another to his own use by paying it out on his private or personal debts (Guenther v. State, 137...

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13 cases
  • State v. Smith
    • United States
    • United States State Supreme Court of Wisconsin
    • 27 Junio 2006
    ...a verdict based on the evidence presented in court, then he or she can qualify as an impartial trier of fact.); McGeever v. State, 239 Wis. 87, 96, 300 N.W. 485 (1941) (a prospective juror's past employment as a dance hall inspector, under the supervision of the local district attorney and ......
  • State v. Kiernan
    • United States
    • United States State Supreme Court of Wisconsin
    • 8 Julio 1999
    ...excluded from jury service. State v. Louis, 156 Wis. 2d 470, 479, 457 N.W.2d 484 (1990)(law enforcement officers); McGeever v. State, 239 Wis. 87, 96-97, 300 N.W.2d 485 (1941) (part-time employee under the supervision of the district attorney and sheriff); State v. Olson, 179 Wis. 2d 715, 7......
  • Hall v. State
    • United States
    • United States State Supreme Court of Delaware
    • 13 Agosto 2010
    ...72 (Tex.Crim.App.1958); State v. Van Dam, 554 P.2d 1324 (Utah 1976); State v. Parker, 104 Vt. 494, 162 A. 696 (1932); McGeever v. State, 239 Wis. 87, 300 N.W. 485 (1941). 7. Lindsay v. State, 97 Fla. 701, 122 So. 1 (1929); Fennell v. State, 396 P.2d 889 (Okla.Crim.App.1964); State v. Johnso......
  • State v. Smith, 2006 WI 74 (Wis. 6/27/2006)
    • United States
    • United States State Supreme Court of Wisconsin
    • 27 Junio 2006
    ...a verdict based on the evidence presented in court, then he or she can qualify as an impartial trier of fact.); McGeever v. State, 239 Wis. 87, 96, 300 N.W. 485 (1941) (a prospective juror's past employment as a dance hall inspector, under the supervision of the local district attorney and ......
  • Request a trial to view additional results

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