State v. Heiden

• Citation: 121 N.W. 138,139 Wis. 519
• Parties: STATE v. HEIDEN.
• Decision Date: 11 May 1909
• Court: United States State Supreme Court of Wisconsin

139 Wis. 519

121 N.W. 138

STATE

v.HEIDEN.

Supreme Court of Wisconsin.

May 11, 1909.

Report from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Fred Heiden, Jr., was convicted of embezzlement. Answer to certified questions reported by the trial court.

The defendant having been inspector of the house of correction in Milwaukee county for more than six years prior to December 30, 1903, on that day indictment was found against him containing two counts, the first of which was that on December 31, 1897, he, being charged with the duty of controlling and managing the business affairs of the house of correction subject to laws, rules, and regulations adopted by the board of supervisors, which business included the manufacture of chairs, did on that day, in discharge of his duties, receive and take into possession one certain promissory note of the Hardy Manufacturing Company, dated December 3, 1897, and also a certain fund of $299, proceeds of the payment of two promissory notes of A. J. Warren, dated October 21, 1897, the property of the county, and that he on said day unlawfully and feloniously embezzled said note and said fund. The second count alleged the same state of facts, except that the defendant on said December 31, 1897, had the custody of the two Warren notes and a fund of $307.30, proceeds of the Hardy Furniture Company note, and did embezzle said notes and said fund. The verdict was guilty under the first count, and was silent as to the second count. The court reported that certain questions of law were doubtful and requested their answer by this court under section 4721, St. 1898. He certifies that there was certain undisputed evidence to the effect that, under the regulations of the county board, a bookkeeper had been appointed to keep all books and accounts under defendant's supervision; that the custom of business was that, when notes were received for goods sold, they were retained in the custody of the bookkeeper until near their maturity, when they were handed over to the defendant, and by him placed with a certain bank for collection, and the proceeds credited to an account kept by such bank in the name of Fred Heiden, Jr., and entered, with proper designation, in an ordinary bank passbook which was retained by defendant; that periodically he handed this passbook to the bookkeeper, whose duty it was therefrom to make credits to the bills receivable account on his books for the amount so collected, charging them presumably to the defendant; that the three notes mentioned in the indictment were received during defendant's incumbancy of the office; that they were not credited upon the books of the county by the bookkeeper; that in 1902 a new bookkeeper discovered discrepancy between the total balance of the bills receivable account and the actual notes then on hand, and called defendant's attention thereto. He, apparently surprised, asserted that the discrepancy must have arisen before his day without checking up to ascertain what notes had failed of credit. Thereafter the bookkeeper made an entry in the journal:

“Chair acct. dr. $______.

To bills receivable, cr. $______.

Amount charged Bills Receivable for which there were no notes on hand when books were turned over to Inspector Heiden; this discrepancy appears to run back for many years.”

Defendant resigned his position September 28, 1903, and on December 30, 1903, before the indictment was found, he paid the amount of the three notes to the county treasurer. The questions will be stated in the opinion.F. L. Gilbert, Atty. Gen., F. C. Eschweiler, and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

W. H. Austin and G. G. Gehrz, for defendant.

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

1. The first question, “Is the indictment or either of the counts thereof double, and did the court err in denying defendant's objection to the admission of any evidence thereunder?” must be answered in the negative, because it is entirely conceivable that the act of embezzlement of the Hardy Furniture Company note and of the money proceeds of the two Warren notes might be accomplished by a single act so far as anything appears on the face of the indictment. For illustration, that note and that fund of money might have been in a single envelope and been taken by the defendant with the intent and purpose then present to appropriate the whole to his own use. It is only when it appears by the indictment itself that two or more distinct acts are involved in the commission of two or more crimes charged that an indictment or a count therein charging two or more offenses is bad for duplicity. Cornell v. State, 104 Wis. 532, 80 N. W. 745;Vogel v. State (Wis.) 119 N. W. 198.

2. The second question is: “Did the court err in denying defendant's motion made before the introduction of any evidence under the indictment, repeated at the conclusion of the state's case, and again made and urged when all the evidence was in, to require the state to elect whether it would proceed against the defendant upon the charge of embezzlement of the notes referred to therein or of the proceeds of said notes?” The motions referred to in this question, or some of them, presented to the trial court for consideration whether the acts claimed to constitute the separate crimes alleged in each count as appeared by the evidence were distinct and separate, so that the evidence which might establish or refute one was different from that with reference to another as explained in the Cornell Case, supra. But the trial court has wholly failed to inform us of whether the evidence so disclosed or not. In order to answer a question of law in compliance with section 4721, it is necessary that the facts on which that question rests should be resolved by the trial court and certified to us, not the evidence, but the ultimate facts, and all of them which are material to determination of the question. State v. Anson, 20 Wis. 651;Sigafus v. Porter, 85 Fed. 689, 29 C. C. A. 391;McHenry v. Alford, 168 U. S. 651, 18 Sup. Ct. 242, 42 L. Ed. 614. That has not been done, and we therefore cannot answer this question. Further, the question is not single, but threefold, which constitutes another obstacle to its certification and consideration. Id. In United States v. Union Pacific Ry. Co., 168 U. S. 505, 512, 18 Sup. Ct. 167, 42 L. Ed. 559, certain requisites of a certification under the federal judiciary act (act March 3, 1891, c. 517, 26 Stat. 826 [U. S. Comp. St. 1901, p. 488]) are catalogued which are quite as essential to a compliance with section 4721: “Each question had to be a distinct point or proposition of law, clearly stated, so that it could be distinctly answered without regard to the other issues of law in the case; to be a question of law only, and not a question of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment upon the weight or effect of testimony or facts adduced in the case; and could not embrace the whole case, even where its decision turned upon matter of law only.”

3. The third question is whether the verdict should be set aside because repugnant, perverse, inconsistent, or the result of compromise; the proof being, as the certificate declares, identically the same and of equal credibility with reference to the charges contained in the two counts of the indictment. While this question borders closely on presenting mixed law and fact for decision, we think we may venture the opinion that upon the face of the verdict itself repugnancy, inconsistency, or perversity does not affirmatively appear. The verdict, even as to the first count, is, of course, vague and uncertain by reason of the refusal of the court to require election....