State v. Mularkey

Decision Date03 April 1928
Citation195 Wis. 549,218 N.W. 809
CourtWisconsin Supreme Court


Question of Law submitted by the Circuit Court for Marquette County; Chester A. Fowler, Judge.

Clayton Mularkey and Henry Hollender were convicted of taking, using, and operating an automobile without the owner's consent, and the circuit court reported a question of law to the Supreme Court. Question answered in the negative, and cause remanded.--[By Editorial Staff.]

Defendants were jointly tried and found guilty of a violation of section 343.18, Stats., but before pronouncing sentence the trial court reported a question of law to this court, pursuant to section 358.10, Stats.John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and K. J. Callahan, Dist. Atty., of Montello, for the State.

Vincent F. McNamara, of Montello, for defendant.


This case was a prosecution of the defendants for a violation of section 343.18, Stats., the material part reading as follows:

“Any person who shall take, use and operate any automobile * * * upon any public highway of this state without the consent of the owner thereof shall, upon conviction thereof,” etc.

The facts, as recited in the report of the trial judge, show a hiring by the defendants of an automobile from the owner thereof at Montello in said county to drive to Oxford, to be returned at 7 o'clock the following morning. The car was driven to Fond du Lac, then to Oxford, then to Dalton, and there abandoned without notice to the owner; the extra driving being without the consent, permission, or knowledge of the owner. The trial court then reported to this court the following question:

“If a person accused of violation of section 343.18, Stats., hires from the owner an automobile to use for a specified trip, and without the consent of the owner uses it for trips far beyond that specified, does the additional use constitute a violation of the statute?”

[1] As pointed out in Eastway v. State, 189 Wis. 56, 58, 206 N. W. 879, involving this same statute, this statute creates a distinct offense, one not necessarily included in the crime of larceny, and to bring a defendant within its purview it is necessary to show that the vehicle is taken without the consent of the owner and operated upon a public highway.

[2] A like statute was considered in State v. Boggs, 181 Iowa, 358, 164 N. W. 759, and there the consent was for its use for a period of 15 to 20 minutes to drive about one...

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10 cases
  • Drewek v. Milwaukee Auto. Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • February 9, 1932
    ...Casualty Co. v. Hoge, 153 Va. 204, 149 S. E. 448;U. S. F. & G. Co. v. Hall, 237 Ky. 393, 35 S.W.(2d) 550. See, also, State v. Mularkey, 195 Wis. 549, 218 N. W. 809;State v. Boggs, 181 Iowa, 358, 164 N. W. 759. [4][5][6] However, whether the truck was being operated by the named assured, or ......
  • State v. Clark
    • United States
    • Washington Supreme Court
    • January 7, 1982
    ...since statutes in contravention of the common law are to be strictly construed. The conviction was reversed. In State v. Mularkey, 195 Wis. 549, 218 N.W. 809 (1928), the Wisconsin Supreme Court relied heavily on the Iowa Supreme Court's decision in Boggs. The court held there was no violati......
  • United States v. One 1941 Chrysler Brougham Sedan
    • United States
    • U.S. District Court — Western District of Michigan
    • December 15, 1947
    ...who takes possession of such a vehicle without the consent of the owner. State v. Boggs, 181 Iowa 358, 164 N.W. 759; State v. Mularkey et al., 195 Wis. 549, 218 N.W. 809. Claimant's remedy would appear to be an administrative appeal by application to the Secretary of the Treasury, as provid......
  • State v. Nadolski, 95-2599-CR
    • United States
    • Wisconsin Court of Appeals
    • January 17, 1996
    ...possession of property lawfully by leasing or renting and continued to use it after the lease expired. See State v. Mularkey, 195 Wis. 549, 551, 218 N.W. 809, 810 (1928); Wis J I--Criminal 1467 cmt. 1. Nadolski argues that because § 943.23(3) was designed to address this gap in the former l......
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