State v. Genova, 76-128-CR

• Decision Date: 19 April 1977
• Docket Number: No. 76-128-CR,76-128-CR
• Citation: 77 Wis.2d 141,252 N.W.2d 380
• Parties: STATE of Wisconsin, Appellant, v. John Angelo GENOVA, Respondent.
• Court: Wisconsin Supreme Court

Page 380

252 N.W.2d 380

77 Wis.2d 141

STATE of Wisconsin, Appellant, v. John Angelo GENOVA, Respondent.

No. 76-128-CR.

Supreme Court of Wisconsin.

Argued March 3, 1977.

Decided April 19, 1977.

John N. Reddin, Milwaukee County Asst. Dist. Atty. (argued), with whom on the brief were Bronson C. La Follette, Atty. Gen., and E. Michael McCann, Milwaukee County Dist. Atty., for appellant.

Bruce C. O'Neill (argued), and Fox, Carpenter & O'Neill, Milwaukee, on the brief, for respondent.

Frank J. Remington, Madison, filed amicus curiae brief.

ABRAHAMSON, Justice.

The question presented in this appeal is whether the defendant's assisting another in the sale of property which the defendant knows to be stolen constitutes being a party to the crime of theft contrary to secs. 939.05, ¹ 943.20(1)(a) (set forth below), and (3)(b), ² Stats. We hold that it does.

The facts alleged are that the defendant told undercover law enforcement officers that he knew a man (his co-defendant) who had a "hot" (stolen) outboard motor for sale for $400. After the officer expressed interest in buying the motor, the defendant arranged for a meeting of the officer and his co-defendant, and the sale transaction was completed. The motor had been stolen from its owner several weeks earlier. There is no assertion in the complaint that the defendant participated in any way in taking the motor from the owner.

Sec. 943.20(1)(a), Stats., provides, in part, as follows:

"943.20 Theft. (1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):

"(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without his consent and with intent to deprive the owner permanently of possession of such property."

The charging portion of the criminal complaint alleges that the defendant and an accomplice

". . . did intentionally and feloniously transfer the movable property of William C. Bowles, having a value of more than $100 but less than $2,500, to wit: a 65 horse power outboard motor Model 650, serial number 3455161, having an approximate value of $700, without the consent of said William C. Bowles and with intent to deprive said William C. Bowles permanently of the possession of such property, contrary to Wisconsin statutes section 943.20(1)(a) & (3)(b) and 939.05."

The trial court dismissed the complaint holding that the defendant was improperly charged with the crime of theft under sec. 943.20(1)(a), Stats. To reach this result, the court interpreted the statute as requiring that the defendant must first take the property from its owner and then, in addition, engage in one of the alternatively listed kinds of conduct carry away, use, conceal, transfer or keep the property. Since the complaint did not charge a taking, it was defective.

The defendant argues that the theft statute does not contemplate more than one theft from the owner. "Transfer," ³ as used in sec. 943.20(1)(a), claims the defendant, cannot be stretched to mean selling stolen goods, i. e., changing possession from the thief to a third party. The defendant contends that once the property is stolen from the owner the sale of the stolen property falls within the concept of receiving stolen property contrary to sec. 943.34, Stats. ⁴ Sec. 943.20 deals with the initial change in possession from the owner, and sec. 943.34 deals with this subsequent change in possession. ⁵ The defendant also contends that the language of sec. 943.20(1)(a) must be read to require that a theft consists of first a taking (from the owner) and then an additional act of carrying away, using, transferring, concealing or retaining.

The State argues that the statute should be read in the disjunctive and not the conjunctive. The State argues that the statute should be read as if the following "ors" appeared in the statute: "takes and carries away, or uses, or transfers, or conceals, or retains." We agree with the State's interpretation of the statute that a violation of sec. 943.20(1)(a), Stats., need not include a taking from the owner. We believe this interpretation is supported by the grammatical construction of the statute and the legislative history.

While the defendant's contention that "once the property is stolen from the owner, it cannot be stolen from him again," may be true as an observable fact, it does not speak to the reach of sec. 943.20(1)(a), Stats., and the kinds of conduct which this section is intended to encompass. We cannot be misled because sec. 943.20 is captioned "Theft." ⁶ The language of the section does not use the term theft. Common law crimes were abolished in Wisconsin in the 1955 Criminal Code. Sec. 939.10, Stats. ⁷ We must look to the Wisconsin legislature's definition of a crime, not the common-law definition. Sec. 943.20(1)(a) describes a series of acts made criminal thereunder, one or more of which, but not all of which, constituted theft under common law. The statute covers more than "stealing from the owner" as the legislative history clearly shows. ⁸

Senate Bill 784, April 26, 1951, was the legislature's initial attempt to revise the Criminal Code, an effort begun in 1949 and finally completed in 1955. The objective was to clarify, codify and condense the myriad of piecemeal statutes that had developed over the years to avoid technical complexities in pleading and to eliminate the useless distinctions between embezzlement, the various kinds of larceny, and common-law theft. There were 26 statutes relating to theft and larceny, and a failure to charge the proper offense resulted in dismissal. ⁹

The 1951 proposal provided:

"343.15 STEALING: (1) Whoever intentionally appropriates the property of another either without his consent or by means of deceit . . . may be penalized as follows . . . .

"(2) 'Appropriate' means to exercise dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing, or retaining possession of his property." (Emphasis added.)

The Legislative Council comment states: " 'Transfer' has been defined very broadly to mean any change in possession of right or title to, or interest in any property. It is used in this subsection in its broadest sense and includes selling the property, giving it away, or pledging or mortgaging it. . . . The phrase 'property of another' includes persons having any special interest in the property appropriated. An intentional exercise of dominion over the property in a manner inconsistent with their rights without their consent or by means of deceit is stealing." ¹⁰

The bill did not pass, but it provided a foundation in the continuing effort to revamp the Criminal Code.

In 1953 the legislature continued the comprehensive revision of the Criminal Code. The 1953 draft provided:

"343.20(1) Whoever does any of the following may be penalized as provided in subsection (3):

"With intent to appropriate the property to his own use, intentionally takes, uses, transfers, conceals or retains possession of the property of another without his consent . . . ."

It should be noted that "takes" is in the disjunctive series including "transfers." An individual who does any one of those acts takes, uses, transfers, conceals or retains possession would violate the statute. It should also be noted that in neither the 1953 version nor its 1951 predecessor do the words "and carries away" appear after the word "takes."

The 1953 version was adopted by the legislature. ¹¹ However, according to the legislative plan for the Criminal Code revision, it was required that the legislation be reenacted during the 1955 session of the legislature. During the interim a new Criminal Code Advisory Committee of the Wisconsin Legislative Council was appointed to study the draft proposal and report its recommendations to the 1955 session of the legislature. The minutes of the Advisory Committee meetings are the only source of history regarding subsequent changes to sec. 343.20. The minutes disclose that at the May 7, 1955, meeting, the subcommittee on the theft statute presented for discussion a draft which read:

"(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without his consent . . . ." (Emphasis added.)

There appears to be no explanation for the additional phrase "and carries away." In view of the preceding two drafts which listed "takes" as one of several alternative kinds of prohibited conduct, it seems unlikely that the drafters intended that a violation consist of a taking plus one of the remaining alternative kinds of conduct. The "and carries away" phrase must have been intended to modify "takes."

If the statute required a "taking" from the owner in addition to a "transfer," the committee would have imposed a greater limitation on sec. 343.20 than existed under prior law. Common law larceny required both a taking and a carrying away; ¹² to sustain a conviction for larceny the State had to prove that the defendant was not in lawful possession of the property at the time he appropriated the property to his own use. In 1887 the Wisconsin statute was changed so that a taking out of the possession of another was not necessary; if the defendant was in possession of the property as a bailee at the time he appropriated the property to his own use that was larceny. ¹³

In his amicus curiae brief, Professor Frank Remington describes the history of sec. 943.20(1)(a), Stats., and concludes:

"There is no indication whatsoever in the legislative history that section 943.20(1)(a) of the statutes was intended to be more limited in scope than the crime of larceny was prior to the revision of the criminal code. To construe sec. 943.20(1)(a) to require that a defendant 'takes' as well as 'transfers' property would mean that sec. 943.20(1)(a) would not include larceny by bailee or larceny by trick as those crimes existed prior...