McGeever v. State

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtFRITZ
Citation300 N.W. 485,239 Wis. 87
Decision Date04 November 1941
PartiesMcGEEVER v. STATE.

239 Wis. 87
300 N.W. 485

McGEEVER
v.
STATE.

Supreme Court of Wisconsin.

Nov. 4, 1941.


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

Affirmed.

[300 N.W. 486]

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 redemption

[300 N.W. 487]

period. 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...

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13 practice notes
  • State v. Smith, No. 2004AP2035-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2006
    ...render 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 attorn......
  • State v. Kiernan, No. 97-2449-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 8, 1999
    ...se 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......
  • Hall v. State , No. 285
    • United States
    • United States State Supreme Court of Delaware
    • August 13, 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), No. 2004AP2035-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2006
    ...render 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 attorn......
  • Request a trial to view additional results
13 cases
  • State v. Smith, No. 2004AP2035-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2006
    ...render 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 attorn......
  • State v. Kiernan, No. 97-2449-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 8, 1999
    ...se 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......
  • Hall v. State , No. 285
    • United States
    • United States State Supreme Court of Delaware
    • August 13, 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), No. 2004AP2035-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2006
    ...render 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 attorn......
  • Request a trial to view additional results

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