State v. Witte

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: BARLOW
• Citation: 243 Wis. 423,10 N.W.2d 117
• Decision Date: 16 June 1943
• Parties: STATE v. WITTE.

243 Wis. 423
10 N.W.2d 117

STATE
v.
WITTE.

Supreme Court of Wisconsin.

June 16, 1943.

Error to review an order of the Circuit Court for Dodge County; Charles L. Aarons, Judge.

Affirmed.

The state sued out a writ of error in this court to review an order of the circuit court for Dodge county, setting aside the verdict of the jury and discharging the

[10 N.W.2d 118]

defendant, John H. Witte, where defendant had been found guilty on three counts of embezzlement.

Defendant was elected and assumed the office of clerk of courts of Dodge county, Wisconsin, on January 13, 1939, and retained the services of a deputy clerk of courts who had been in the office for approximately eighteen years.

The defendant had formerly been engaged in the barber business, had an eighth grade education, and no experience or training in bookkeeping. He is charged with embezzlement under sec. 343.20, Stats., and the information contained eight counts. Five counts were dismissed before the case was submitted to the jury.

By special statute, the county court of Dodge county has limited concurrent jurisdiction with the circuit court, and defendant was clerk of both the county court and the circuit court. The bookkeeping system used by the former clerk of courts was continued by this defendant. A trust fund register was kept and a cash receipt book. Sometimes receipts were given when money was paid, and at other times no receipt was given. The clerk and deputy clerk received money and receipted for it if receipts were demanded.

The outgoing clerk of courts at no time delivered the contents of the office to this defendant, but the deputy clerk of courts prepared a statement covering the trust funds and other funds on hand and requested the defendant to indicate his approval of this statement by signing the same, which defendant hesitated to do but finally signed after being assured by the deputy that it was proper for him to do so. Defendant received no copy. The deputy clerk then delivered to the defendant a check issued by the former clerk of courts in the sum of $3,054.03, cash $200, and a check of third parties for $200. Defendant opened an account with the Horicon State Bank in the name of Dodge County Clerk of Courts, and deposited in this account the check of the former clerk of courts and $200 in cash, which account was continued while he was in office. All checks drawn on this account were issued for proper purposes and to proper persons, and were signed by the defendant. As funds were received they were placed in the cash drawer during the day, and later in the safe, and usually deposits were made in the bank once each month, although additional deposits were made a few times. Alimony checks payable direct to the persons entitled to receive them were forwarded, and entries made in the books showing this fact. Alimony checks payable to the clerk of courts were deposited and checks issued by the clerk of courts. No daily or other trial balances were made.

Defendant requested the county board members to have the books audited after he came into office, and to have the combination of the safe changed. When the county failed to have the combination of the safe changed, the defendant had this done shortly before he resigned from office. In September, 1941, the county employed auditors to audit the books of various county officers, including the clerk of courts. This audit covered the years 1937, 1938, 1939, and 1940. The cash in the cash drawer could not be ascertained at that time. A further audit for the year 1941 was made, and an audit from January 1 to April 20, 1942, was also made.

Defendant was re-elected for a second term, and on taking office in January, 1941, the deputy clerk of courts was not reappointed for the reason that his services had been unsatisfactory. Defendant resigned April 20, 1942.

It had been the practice for a period of years for the clerk of courts to make an accounting and settlement with the county treasurer of funds due the county at the expiration of each calendar year. The defendant requested his deputy to make such report at the expiration of the year 1939, which the deputy failed to do, with the statement that he was too busy at the time.

Defendant served as clerk when court was in session, and when both courts were in session at the same time, the clerk of courts served in one court and the deputy in the other.

Defendant is charged in the information with embezzlement of funds during the year 1939. Further facts will be set forth in the opinion.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Clarence G. Traeger, Dist, Atty., of Horicon, for plaintiff in error.

Wm. H. Markham, of Horicon, for defendant in error.

BARLOW, Justice.

The jury found the defendant in error guilty of embezzlement on three counts,

[10 N.W.2d 119]

and upon motion after verdict, the trial judge set the verdict aside for the reason that the evidence was insufficient, and discharged the defendant in error. The state brings the case to this court on a writ of error under sec. 358.12(8), Stats., with permission of the presiding judge. Defendant in error contends that this subsection is unconstitutional, as violating sec. 8, art. I, of the Wisconsin Constitution, which provides, so far as material here, as follows: “* * * no person for the same offense shall be put twice in jeopardy of punishment, * * *” That portion of sec. 358.12(8) applicable here provides as follows:

“A writ of error may be taken by and on behalf of the state in criminal cases:

* * * * *

“(8) From rulings and decisions adverse to the state upon all questions of law arising on the trial, with the permission of the presiding judge, in the same manner and to the same effect as if taken by the defendant.”

Prior to 1909 the state had no right of review in a criminal action. The first legislative act permitting review of adverse decisions in criminal cases by the state was ch. 224, Laws of 1909, which created sec. 4724a, Stats., permitting a writ of error by the state to review any final judgment adverse to the state rendered before jeopardy had attached. In 1911, sec. 4724a, Stats., was amended by ch. 187, Laws of 1911, creating what is now sec. 358.12 subsecs. (1) to (6). This chapter also created sec. 4645a, now numbered sec. 355.09, requiring objections to the sufficiency of the information or indictment, or to the prosecution, which may be raised by a special plea or motion, to be so raised before the jury is sworn or else be deemed waived, and if raised later with the consent of the court, to constitute a waiver of jeopardy. Subsecs. (7) and (8) of sec. 358.12, Stats. were added by ch. 306, Laws of 1941.

In State v. Meen, 171 Wis. 36, 176 N.W. 70, a case presenting exactly the same situation as we have here, decided prior to the enactment of sec. 358.12, Stats., this court said: “* * * Writs of error do not lie at the suit of the state unless they are provided for by statutes which are constitutional, under the provisions of sec. 8, art. I. Const. * * * State v. Kemp, 17 Wis. 669;State v. Martin, 30 Wis. 216, [11 Am.Rep. 567];State v. Grottkau, 73 Wis. 589, 41 N.W. 80, 1063, [9 Am.St.Rep. 816].”

In State v. Hunter, 235 Wis. 188, 292 N.W. 609, the right of the state to a writ of error prior to the attachment of jeopardy was upheld when subsecs. (1), (2) and (3) of sec. 358.12, Stats. were held to be constitutional.

Under the general rule of law, that when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned and has pleaded, and the jury has been impaneled or sworn, jeopardy has attached, Schultz v. State, 135 Wis. 644, 114 N.W. 505,116 N.W. 259, 571;McDonald v. State, 79 Wis. 651, 48 N.W. 863,24 Am.St.Rep. 740;State v. Parish, 43 Wis. 395, there is no question about defendant in error having been in jeopardy in this case.

It does not follow that the statute authorizing this writ of error violates the double jeopardy provision of the constitution of the state of Wisconsin. We recognize that somewhat similar statutes have been held to violate the constitutional provisions prohibiting double jeopardy. People v. Webb, 38 Cal. 467;People v. Miner, 144 Ill. 308, 33 N.E. 40,19 L.R.A. 342; Ex parte Bornee, 76 W.Va. 360, 85 S.E. 529, L.R.A.1915F, 1093, and other cases.

In State v. Felch, 92 Vt. 477, 105 A. 23, on appeal by the state in a criminal action, the common law rule and provisions of the United States constitution relative to double jeopardy were considered, and the court held that the law of the land must be interpreted in the light of the period in which it is determined; that...