State v. Meyer

Decision Date06 February 1951
Citation258 Wis. 326,46 N.W.2d 341
PartiesSTATE, v. MEYER.
CourtWisconsin Supreme Court

The defendant, Victor Meyer, was charged at first with the unlawful possession of twenty-three beaver pelts and with bartering, trading and purchasing twenty-four beaver tags, contrary to the statute in such case made and provided. There was a preliminary examination held, and defendant was bound over to the circuit court for Taylor county for trial. These proceedings occurred on March 25, 1950. The defendant entered a plea in abatement, alleging that the offense charged was within the jurisdiction of the justice of the peace to try and dispose of. The circuit court sustained the plea in abatement and returned the matter to the justice court.

On April 24, 1950, the defendant was again arrested, the complaint at this time charging him with the unlawful possession of beaver pelts and the unlawful bartering, trading and purchasing of beaver tags; and in addition there was the allegation that the defendant had theretofore, on May 16, 1931, been convicted of robbery, being armed. A preliminary examination was then held and the defendant bound over to the circuit court. The defendant again entered a plea in abatement alleging that 'any offense charged or proven in said proceedings was an offense within the jurisdiction of the justice of the peace to try and dispose of.' This plea was overruled. The district attorney then filing an information charging the defendant with the offenses referred to and with unlawfully trapping more than twelve beavers and alleging other violations of game laws and prior conviction of robbery, the trial proceeded before a jury. The information is as follows:

'Information:

'I, Lewis J. Charles, District Attorney for Taylor County, Wisconsin, do hereby inform the Court:

'That, as a first count, on or about the 2nd day of March, 1950, in Taylor County, Victor Meyer did wilfully and unlawfully have in his possession and under his control 23 beaver pelts in excess of the bag and possession limit at said time established for the taking of beaver during the beaver trapping season for the year 1950, contrary to the provisions of Section 29.39 of the Wisconsin Statutes; and,

'As a second count, on or about the 23rd day of February, 1950, in Taylor County, Victor Meyer did wilfully and unlawfully barter, trade and purchase 24 certain trapper's beaver tags issued by the State Conservation Commission of Wisconsin under Subsection 3 of Section 29.594 to one Bernard Tilch and one C. H. Hendrickson, contrary to Order No. SG-54 of the State Conservation Commission of Wisconsin, such order having been duly made by the State Conservation Commission under and pursuant to the provisions of Subsection 7 of Section 23.09 of the Wisconsin Statutes; and,

'As a third count, that on and between the 15th day of February and the 16th day of March, 1950, in Taylor County, Victor Meyer did wilfully and unlawfully catch, kill and trap wild animals, to-wit, beaver, in the open season, in excess of the number designated for such species, contrary to Order No. G-746, as amended, of the State Conservation Commission of Wisconsin, such order having been duly made by the State Conservation Commission of Wisconsin, under and pursuant to the provisions of Section 29.174 of the Wisconsin Statutes; and,

'That the said Victor Meyer was, on the 16th day of May 1931, convicted in the Circuit Court for Lincoln County, Wisconsin, of the offense of the crime of robbery by the means of firearms, the said Victor Meyer having entered a plea of guilty to said charge; that upon said plea of guilty, and the adjudication of guilt thereon, the said Victor Meyer was duly sentenced to the Wisconsin State Reformatory at Green Bay, Wisconsin for the general or indeterminate term of not less than three years nor more than ten years, the term of imprisonment to commence at twelve o'clock noon of the 16th day of May, 1931, all against the Peace and Dignity of the State of Wisconsin.

'Dated April 24, 1950.'

The defendant had a special beaver trapping license required by section 29.594 Wis.Stats. He bought in his own name the limit of twelve tags. He admits trapping his limit. However, under some arrangement with Hendrickson he took Hendrickson's tags and trapped twelve more beavers. He called the arrangement an employment. This is concededly contrary to regulations under the statute and orders of the conservation department. The claimed employment arose out of a conversation to the effect that defendant stated: 'Hire me, I will catch them for you,' to which Hendrickson replied: 'Here, take the tags and fill them up for me.' After catching the beavers, defendant placed tags on them. Some were dried in defendant's home, and others were dried at the house of John Roiger, where there was a floor full of hides. Some of these hides bore tags attributed to Bernard Tilch.

In addition to tags defendant obtained from Hendrickson, Tilch testified that Meyer had obtained twelve tags from him and that twelve beavers were trapped on which these tags were placed, and that he turned them in on behalf of Mayer to warden John Marcon at Medford for record. The defendant denied that he had ever obtained any tags from Tilch. Tilch's testimony in places was confusing and sometimes contradictory, all of which may be said of the testimony of other witnesses, but he testified concerning the pelts of beavers trapped by the defendant.

'Q. How many of those pelts, if any, did you catch or trap yourself? A. None.

'Q. Do you know who caught or trapped those pelts? A. I imagine Vic did, he had the tags.

'Q. Were you informed by Victor Meyer at any time as to whether he did or did not catch those beaver? A. Yes.

'Q. What did he say? A. I don't remember what he said.

'Q. Did he say 'yes' he had or 'no' he did not catch those 12 beaver? A. He took the tags, that is the last I seen of them.'

Upon further questioning he said that the defendant told him that he caught the beaver, and that he (Tilch) 'brought them in.'

'You tagged them and brought them in? How much were you to get out of it? A. Nothing, I guess.

'Q. You were to get nothing out of it, is that correct? A. Yes.

* * *

* * *

'Q. Then how did you happen to give them to him? A. Well, I got them for him and he come over after them.'

In connection with the giving of the tags to defendant by Tilch, the testimony is that 'it all took place in the tavern.'

'Q. What did you do with those tags? A. I guess I gave them to Vic.'

There is evidence amply sustaining the verdict showing that twelve beaver were brought in with tags purchased by Hendrickson attached to them, and that when the beaver bearing the Tilch tags were brought in there was eleven such tags and one with a tag issued to the wife of the defendant. The credibility of witnesses was for the jury to determine, and the defendant was found guilty as charged. Under the general repeater statute, section 359.14, Wis.Stats. 1947, the court sentenced defendant to the state prison at Waupun for not less than one nor more than two years. Defendant appeals.

Leicht & Curran, Medford, for appellant.

Thomas E. Fairchild, Atty. Gen., William A. Platz, Asst. Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., Lewis J. Charles, Dist. Atty., Taylor Co., Medford, for respondent.

FAIRCHILD, Justice.

As appears from the foregoing statement of facts, the defendant has been found guilty under an information in which he is accused of certain violations of the game laws and in addition for the purpose of fixing a penalty alleges 'That the said Victor Meyer was, on the 16th day of May, 1931, convicted in the Circuit Court for Lincoln County, Wisconsin, of the offense of the crime of robbery by means of firearms, the said Victor Meyer having entered a plea of guilty to said charge; that upon said plea of guilty, and the adjudication of guilt thereon, the said Victor Meyer was duly sentenced to the Wisconsin State Reformatory at Green Bay, Wisconsin, for the general or indeterminate term of not less than three years nor more than ten years, the term of imprisonment to commence at twelve o'clock noon of the 16th day of May, 1931, * * *.'

On this appeal the defendant directs our attention to certain claimed errors and urges that at least he should be granted a new trial. We do not deem it necessary to recite the testimony further than it is set out in the statement of facts. The evidence reviewed shows conclusively that the defendant did commit the acts charged, and also that he was the one who was previously convicted and sentenced to the reformatory. We find nothing that would warrant a conclusion that the jury were misled as to any issue, or that anything which occurred can be held to be prejudicial error.

There is in the instructions to the jury a misstatement. The court in effect said that the defendant stated that he had been hired by both Tilch and Hendrickson to trap for them. The state concedes that that instruction contains a misstatement, because Meyer claimed that he had not been hired by Tilch, although the evidence is that he did receive his tags. There was testimony to the effect that when Tilch turned in twelve hides which were ostensibly Tilch's it was found that eleven bore Tilch's tags and one bore a tag issued in the name of Anna Meyer, wife of the defendant, Victor Meyer. At the time of the ruling admitting the record of a prior conviction, the declaration by the district attorney of his purpose to file an information, which becomes important in a discussion of the relation of the repeater statute to this case, the following colloquy occurred. The court said: 'Do you want to waive the reading and filing of the information?' That question was answered by the defendant's attorney saying 'Yes.' It was then announced by Mr. Charles, the district attorney, that he was filing the information. Thereafter the trial began, and opening statements were made, ...

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