Topolewski v. State
| Decision Date | 04 December 1906 |
| Citation | 130 Wis. 244,109 N.W. 1037 |
| Parties | TOPOLEWSKI v. STATE. |
| Court | Wisconsin Supreme Court |
Error to Municipal Court of Milwaukee County; A. C. Brazee, Judge.
John Topolewski was convicted of larceny, and he brings error. Reversed, and remanded for new trial.
The accused was charged with having stolen three barrels of meat, the property of the Plankinton Packing Company, of the value of $55.20, and was found guilty. The cause was appealed to and tried in the municipal court for Milwaukee county on evidence taken in the lower court, a jury being waived. The accused was again convicted and sentenced as before to pay a fine of $100.00, and $42.84, costs of prosecution and to be committed to the House of Correction of Milwaukee county, until such payment should be made. There was a motion to set aside the conviction and for a new trial and also a motion in arrest of judgment. Both motions were denied. The fine and costs were paid under protest, to avoid the consequences as to imprisonment.
The evidence was to this effect: The Plankinton Packing Company suspected the accused of having by criminal means possessed himself of some of its property and of having a purpose to make further efforts to that end. A short time before the 14th day of October, 1905, one Mat Dolan, who was indebted to the accused in the sum of upwards of $100.00, was discharged from the company's employ. Shortly theretofore the accused pressed Dolan for payment of the aforesaid indebtedness and the latter, being unable to respond, the former conceived the idea of solving the difficulty by obtaining some of the company's meat products through Dolan's aid and by criminal means, Dolan to participate in the benefits of the transaction by having the value of the property credited upon his indebtedness. A plan was accordingly laid by the two to that end, which Dolan disclosed to the company. Such plan was abandoned. Thereafter various methods were discussed of carrying out the idea of the accused, Dolan participating with the knowledge and sanction of the company. Finally a meeting was arranged between Dolan and the accused to consider the subject, the packing company requesting the former to bring it about, and with knowledge of Dolan causing one of its employés to be in hiding where he could overhear whatever might be said, the arrangement being made on the part of the company by Mr. Layer the person in charge of its wholesale department. At such interview the accused proposed that Dolan should procure some packages of the company's meat to be placed on their loading platform, as was customary in delivering meat to customers, and that he should drive to such platform, ostensibly as a customer, and remove such packages. Dolan agreed to the proposition and it was decided that the same should be consummated early the next morning, all of which was reported to Mr. Layer. He thereupon caused four barrels of meat to be packed and put in the accustomed condition for delivery to customers and placed on the platform in readiness for the accused to take them. He set a watch over the property and notified the person in charge of the platform, who was ignorant of the reason for so placing the barrels, upon his inquiring what they were placed there for, to let them go; that they were for a man who would call for them. About the time appointed for the accused to appear he drove to the platform and commenced putting the barrels in his wagon. The platform boss supposing, as the fact was, that the accused was the man Mr. Layer said was to come for the property, assumed the attitude of consenting to the taking. He did not actually help load the barrels on to the wagon, but he was by, consented by his manner and when the accused was ready to go, helped him arrange his wagon and inquired what was to be done with the fourth barrel. The accused replied that he wanted it marked and sent up to him with a bill. He told the platform boss that he ordered the stuff the night before through Dolan. He took full possession of the three barrels of meat with intent to deprive the owner permanently thereof and without compensating it therefor, wholly in ignorance, however, of the fact that Dolan had acted in the matter on behalf of such owner and that it had knowingly aided in carrying out the plan for obtaining the meat.Blenski & Cordes and Lenicheck, Fairchild & Boesel, for plaintiff in error.
L. M. Sturdevant, Atty. Gen., and A. C. Titus, Asst. Atty. Gen., for the State.
MARSHALL, J. (after stating the facts).
Evidence was allowed of a hearsay character that the accused, prior to the occurrence in question had been a party to criminally appropriating property of the packing company. Mr. Layer was permitted to testify that the accused at one time conspired with Peter Juston to so obtain some of its property and succeeded in that regard as said Juston informed the witness, and as was indicated by the books kept by Juston and papers manipulated by the latter. Juston was permitted to testify to such unlawful appropriation of property so far as the purpose of the accused had to do with the transaction. Mere heresay evidence, subject to some exceptions not important here, is never allowable and the admission of it is presumed to be prejudicial, unless the contrary clearly appears. Again on the trial of a person for a particular offense evidence tending to prove that he has committed other distinct offenses is incompetent and generally prejudicial. Albricht v. State, 6 Wis. 74;Fossdahl v. State, 89 Wis. 482, 62 N. W. 185;Boldt v. State, 72 Wis. 7, 38 N. W. 177;Paulson v. State, 118 Wis. 89–98, 94 N. W. 771;Barton v. Bruley, 119 Wis. 326, 96 N. W. 815;Holmes v. State, 124 Wis. 133, 102 N. W. 321.
When a person is charged with being guilty of a particular offense he has a right, which should not be trespassed upon at all, to have the evidence in support of such charge confined to that particular offense. That, of course, has nothing to do with the rule allowing evidence of a former conviction as bearing on the subject of credibility of the accused in case of his offering himself as a witness, nor the rule permitting proof of other offenses so intimately connected with the one charged as to be evidentiary of the intent essential. Cases of the latter character too often lead to the improper admission of evidence contrary to the general rule above stated.
Notwithstanding the foregoing the admission of the improper evidence does not give cause for a reversal here. In a case tried by the court the admission of improper evidence is to be regarded on appeal as having been harmless, unless it clearly appears that but therefor the finding would probably have been different. Harrigan v. Gilchrist, 121 Wis. 314, 99 N. W. 909. We are unable to see any clear indication that the plaintiff in error was prejudiced by the error in this case. If the judgment is fatally tainted with error the fault lies in a misconception of the law as regards trespass being essential to the crime of larceny or as to, under what circumstances, in regard to the conduct of the owner of the subject of the larceny, such element does not exist.
It was frankly conceded on the oral argument by the learned attorney general that if the plaintiff in error committed the crime of larceny Dolan, the decoy of the packing company, was a guilty participant in the matter, unless the element of guilt on his part was absent because, while in the transaction he acted ostensibly as an accomplice of the accused, his acts were in fact those of the packing company. So in the circumstances characterizing the taking of the barrels of meat from the loading platform the case comes down to this: If a person procures another to arrange with a third person for the latter to consummate, as he supposes, larceny of the goods of such person and such third person in the course of negotiations so sanctioned by such person suggests the plan to be followed, which is agreed upon between the two, each to be an actor in the matter, and subsequently that is sanctioned secretly by such person, the purpose on the part of the latter being to entrap and bring to justice one thought to be disposed to commit the offense of larceny, and such person carries out a part of such plan necessary to its consummation assigned to such other in the agreement aforesaid, such third person not knowing that such person is advised of the impending offense,...
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People v. Smith
...on the ground the property owner's consent negates the essential trespassory element of larceny. A case often cited for this rule is Topolewski v. State.16 In that case Dolan, a former employee of a meat packing plant, was approached by a defendant seeking Dolan's assistance in stealing mea......
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Butler v. United States
...harmless, unless it clearly appears that otherwise the findings would have been different, Topolewski v. State, 130 Wis. 244, 109 N.W. 1037, 7 L.R.A.,N.S., 756, 118 Am.St.Rep. 1019, 10 Ann.Cas. 627, and when guilt is clearly established by competent evidence, error in the admission of the o......
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...a matter of trial strategy. We recognized in Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101, and Topolewski v. State (1906), 130 Wis. 244, 109 N.W. 1037, 7 L.R.A.,N.S., 756, that the technique of handling the admissibility of evidence in a trial to the court and the result of its e......
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...have been different. " Birmingham v. State (1938), 228 Wis. 448, 454, 279 N.W. 15, 116 A.L.R. 554, quoting from Topolewski v. State (1906), 130 Wis. 244, 109 N.W. 1037.' Gauthier v. State (1965), 28 Wis.2d 412, 421, 137 N.W.2d 101." Id. at 149, 181 N.W.2d at 2. There was sufficient evidence......
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United States v. O'hagan: Defining the Limits of Fraud and Deceptive Pretext Under Rule 10b-5
...Fletcher describes the import of the lack of a trespassory taking as it pertains to larceny by citing the case of Topolewski v. State, 109 N.W. 1037 (Wis. 1906). In Topoleski, the defendant's conviction for larceny was reversed on the grounds that the owner of the allegedly stolen goods had......