State v. Brown

• Decision Date: 04 October 1910
• Citation: 127 N.W. 956,143 Wis. 405
• Parties: STATE v. BROWN.
• Court: Wisconsin Supreme Court

143 Wis. 405

127 N.W. 956

STATE

v.BROWN.

Supreme Court of Wisconsin.

Oct. 4, 1910.

Error to Circuit Court, Marinette County; Samuel D. Hastings, Judge.

In the matter of the prosecution of Thomas W. Brown for obtaining money under false pretenses. From an order sustaining defendant's demurrer to the indictment, the state brings error. Order reversed, with directions.

An indictment containing 10 counts was returned by a grand jury impaneled in Marinette county, wherein it was attempted to charge the defendant in error (hereinafter called the defendant) with the commission of 10 different offenses. The first count in the indictment was as follows: “Thomas W. Brown, being then and there the duly elected, qualified, and acting sheriff of Marinette county, in the state of Wisconsin, contriving and intending, knowingly and designedly by false pretenses, to cheat and defraud the said county of Marinette of money belonging to the said county of Marinette, did on the said 13th day of November, 1905, in Marinette county, knowingly and designedly falsely pretend to Marinette county that one Lizzie Plant had been incarcerated in the county jail for Marinette county from the 14th day of September, 1905, to and including the 31st day of October, 1905, in accordance with a sentence passed upon the said Lizzie Plant by the police court of the city of Marinette on the 14th day of August, 1905, and that there was justly due the said Thomas W. Brown the sum of eighteen dollars and eighty cents for boarding the said Lizzie Plant as such prisoner while so incarcerated in said jail during said period of time, which said false and fraudulent representations were made by the said Thomas W. Brown presenting to the said Marinette county a sworn bill or statement alleging that said sum of eighteen dollars and eighty cents was then justly due and owing the said Thomas W. Brown from Marinette county for boarding the said Lizzie Plant during said period of time, by which false pretenses the said Thomas W. Brown did then and there unlawfully and feloniously induce the said Marinette county to pay the said Thomas W. Brown the said sum of eighteen dollars and eighty cents of its money, good and lawful money of the United States, the said Marinette county then and there relying upon the said representations so made, whereas, in truth and in fact, the said Lizzie Plant was not incarcerated in said jail in Marinette county for said period of time nor any part thereof, and that there was nothing due the said Thomas W. Brown for boarding the said Lizzie Plant as a prisoner in said county jail during said period of time, contrary to the law in such case made and provided and against the peace and dignity of the state of Wisconsin.” The remaining counts returned related to other separate and distinct alleged illegal and fraudulent claims presented by the defendant to Marinette county; the language used in charging the offense being similar to that employed in the first count. The defendant demurred to each of the counts in the indictment on the ground that no offense known to the law was stated therein. To review an order sustaining such demurrer, and a judgment, discharging the defendant, the state prosecutes a writ of error to this court.

F. L. Gilbert, Atty. Gen., and Samuel H. Cady, Special Counsel, for the State.

Feeney & Miller, J. H. McGillan, and H. O. Fairchild, for defendant in error.

BARNES, J. (after stating the facts as above).

This case comes before us by virtue of section 4724a, St. Wis., as created by Laws 1909, c. 224, on a writ of error sued out to review the decision of the lower court in sustaining a demurrer to an indictment. It is the first cause brought to this court at the instance of the state to review a judgment in a criminal action since the above statute was enacted.

The defendant contends that the indictment is faulty in the following particulars: (1) In not averring that defendant obtained the money referred to in the various counts in the indictment; (2) in setting forth that the false pretenses were made to Marinette county without naming the officers of the county to whom the pretenses were made; and (3) in failing to allege that the formalities required by section 677, St. 1898, in regard to the making, filing, and verifying of the claims presented by the defendant against the county, were observed. The court sustained the demurrer on the first of the grounds above stated.

1. Section 4423, St. 1898, provides that “any person who shall designedly, and by false pretenses * * * and with intent to defraud, obtain from any other person any money” shall be punished as therein provided. “The gravamen of the crime is the obtaining of the property described. * * * This statute, like other criminal statutes, must receive strict construction.” Bates v. State, 124 Wis. 612, 615, 103 N. W. 251, 253, and cases cited. It is contended by the defendant that the allegation of the indictment--“By which false pretenses the said Thomas W. Brown did then and there unlawfully and feloniously induce the said Marinette county to pay the said Thomas W. Brown the said sum of eighteen dollars and eighty cents of its money, good and lawful money of the United States, the said Marinette county then and there relying upon the said representations so made”--does not charge that the defendant Brown obtained the money, or even that the county parted with it. It is urged that the word “induce” may well mean to persuade, to convince, or to tempt, and that defendant might tempt, persuade, or convince the county that it should pay the money in question, but that, until he actually received it, no crime was committed under the section of our statutes referred to. The following authorities are cited as sustaining the defendant's position: Commonwealth v. Lannan, 1 Allen (Mass.) 590;State v. Phelan, 159 Mo. 122, 60 S. W. 71;Connor v. State, 29 Fla. 455, 10 South. 891, 30 Am. St. Rep. 126;State v. Lewis, 26 Kan. 123;Kennedy v. State, 34 Ohio St. 310. The point decided in each of the authorities cited is closely analogous to the one raised in the case before us, and the trial court with considerable reluctance concluded to follow the decided cases. No case decided under a similar statute has been called to our attention, where an indictment such as the one before us has been held good.

Precedents from foreign jurisdictions on matters of pleading and practice in criminal cases are often illusory and misleading. Some courts have adopted extremely strict and often highly technical rules for the construction of indictments and informations. Others have followed more liberal and more reasonable rules. In many of the states the rigor of rules formerly laid down has been mitigated by statute law. On a question such as the one before us the judgments of other tribunals may aid, but they cannot control or conclude this court. The indictment in this case states that the defendant “did * * * induce said Marinette county to pay” him the sum of $18.80. Taking this language in its usual acceptation, it means that Marinette county paid over to the defendant, and that the defendant received and obtained from it, the sum stated, and it would, we think, be so construed by 99 out of every 100 persons reading it. The learned counsel for the defendant frankly admitted on the argument that such...