Roby v. State

• Decision Date: 24 June 1897
• Citation: 96 Wis. 667,71 N.W. 1046
• Parties: ROBY v. STATE.
• Court: Wisconsin Supreme Court

96 Wis. 667

71 N.W. 1046

ROBY

v.STATE.

Supreme Court of Wisconsin.

June 24, 1897.

Error to circuit court, Columbia county; Robert G. Siebecker, Judge.

Samuel D. Roby was convicted of larceny, and brings error. Reversed.

This is a criminal action for the larceny of a bank draft for the sum of $340.50. The information contained a second count for receiving and concealing said draft knowing it to be stolen, and a general verdict of guilty was rendered, and to reverse the sentence thereon this writ of error was prosecuted.

The evidence upon the trial showed that in the latter part of April, 1894, one August Affeld found a letter on the highway containing a bank draft payable to the order of Lucy S. Rice in the sum of $340.50. The draft was issued by James M. Wilkinson, a banker at Marquette, Mich., April 21, 1894, was signed by A. F. Marquard, cashier, and was drawn upon the Merchants' Loan & Trust Company, of Chicago, Ill. This draft was found on the road between the city of Juneau and the home of said Lucy S. Rice. It appears that Affeld made several attempts to get said draft cashed, but did not succeed, owing to the fact that it was not indorsed by Mrs. Rice. Afterwards he turned the draft over to one Ernst Hilgendorf, his cousin, who also attempted to get the draft cashed, but failed. Later Hilgendorf turned the draft over to the defendant, Roby. At the time of this last transfer the evidence tends to show that the draft had the name of Lucy S. Rice upon the back, but the evidence does not show who wrote it. Roby claims to have been innocent in the matter, and to have supposed that the draft was the property of Hilgendorf, and was properly indorsed by Mrs. Rice. He succeeded in getting the draft cashed in the city of Watertown, the same being indorsed by Hilgendorf, Roby, and one George Lempke. He retained $110 of the money that Hilgendorf had agreed he might retain, and the balance he turned over to Hilgendorf. Mrs. Rice was not called as a witness on the trial, nor was any direct testimony given to show that she had not authorized her name to be signed upon the back of the draft, although there was evidence tending to show that the signature was not in her handwriting. There was introduced upon the trial a letter purporting to have been written by Marquard, the cashier of the bank which issued the draft, to Mrs. Rice, June 2, 1894, which letter is as follows: “Dear Madam: On April 21st Mr. Robert Shaw purchased one draft, No. 39,125, on Chicago, for $340.50, payable to your order. He shows us your letter of May 26th to-day, claiming that you have never received the draft. On May 15th the German National Bank of Beaver Dam, Wis., sent us this draft, with your name on the back, and purporting to be signed by you, and asking us to remit to them if we knew your signature. We...