Opinion
September 9, 1966. —
October 4, 1966.
ERROR to review a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there were briefs and oral argument by Francis J. Demet of Milwaukee.
For the defendant in error the cause was argued by Robert E. Sutton, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O'Connell, district attorney.
Elizabeth La Vigne, the plaintiff in error (hereinafter called "defendant"), was tried by the court without a jury and found guilty of two counts of forgery in violation of sec. 943.38(2), Stats.
Count one of the information charged the defendant with feloniously making and uttering a bank check on February 4, 1964, on the account of Ann Solveson to Diane Russell in the amount of $50.
Count two of the information charged the defendant with feloniously making and uttering a bank check on February 7, 1964, on the account of Ann Solveson to Lane Bryant in the amount of $68.
The defendant was found guilty of both counts of the information and sentenced to concurrent terms of not more than five years on each count of the information.
The defendant was thirty-one years old at the time in question. She was married but separated and lived with her children in Milwaukee. She was born and educated in Europe and came to the United States in 1952, and claimed to be unable to read or write English except for figures.
Two young girls, Diane Russell, aged seventeen, and Marlene Goeckermann, aged sixteen, were also living with the defendant in her home. Diane ran away from her grandparents and had been living with defendant for several weeks. Marlene had worked for one Ann Solveson as a baby-sitter for about three years and lived with the defendant for at least a few days.
Marlene informed the defendant that she had seen several books of bank checks at Ann Solveson's home. The defendant told Marlene to steal some of the blank checks. Diane and Marlene entered the home of Ann Solveson and stole four books of blank checks with Ann Solveson's name imprinted upon them. Marlene later stole Ann Solveson's driver's license upon the direction of the defendant, to be used for identification purposes when passing the checks. Later two additional books of bank checks were stolen in a like manner.
The defendant instructed Marlene as to how to make out the bank checks.
The check involved in the first count of the information was made out by Marlene to Diane in the amount of $50. The check was signed "Ann Solveson" by Marlene as maker and indorsed by Diane. The check was cashed at a supermarket in payment of $20 worth of groceries and $30 cash. The cash was to be divided equally among the three but one of the girls claimed the defendant did not give her the $10.
The check involved in the second count of the information was likewise made out in the name of Ann Solveson by Marlene, made payable to the Lane Bryant store in the amount of $68, and given for the purchase of a suit for the defendant. The defendant actively participated in the purchase of the suit.
In all, 23 checks were made and passed in this manner.
The defendant denied showing the girls how to make out the checks or in any way participating in the making or uttering of the checks.
The defendant had three prior convictions — two for forgery and one of three counts for issuance of worthless checks.
The trial court found the defendant guilty of forgery as charged by virtue of being a party to the crime, either as an aider and abettor or as a conspirator, and sentenced her as set forth above. The defendant appeals.
The defendant contends that evidence is wholly insufficient to convict her because there is no proof that she either made the checks out or that she uttered them, and there is a fatal variance between the proof and the crime alleged.
Sec. 943.38, Stats., provides as follows:
" Forgery. (1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, may be fined not more than $5,000 or imprisoned not more than 10 years or both:
"(a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights; or
". . .
"(2) Whoever utters as genuine or possesses with intent to utter as false or as genuine any forged writing or object mentioned in sub. (1), knowing it to have been thus falsely made or altered, may be fined or imprisoned or both as provided in said subsection."
Sec. 939.05, Stats., provides:
" Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although he did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
"(2) A person is concerned in the commission of the crime if he:
"(a) Directly commits the crime; or
"(b) Intentionally aids and abets the commission of it; or
"(c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not apply to a person who voluntarily changes his mind and no longer desires that the crime be committed and notifies the other parties concerned of his withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw."
Clearly there is ample credible testimony in the record to sustain a conviction beyond reasonable doubt that the defendant was either an aider and abettor or a conspirator.
In arguing that the information must allege the acts of aiding and abetting or conspiracy, the defendant overlooks the clear language of sec. 939.05, Stats., where it states:
"Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although he did not directly commit it . . . ." (Emphasis added.)
In two recent cases this court has reaffirmed its long-standing rule that one who aids and abets the commission of a crime or is a party to a conspiracy with another to commit a crime can be charged and convicted as a principal.
State v. Maas (1944), 246 Wis. 159, 16 N.W.2d 406; Krueger v. State (1920), 171 Wis. 566, 177 N.W. 917; Vogel v. State (1909), 138 Wis. 315, 119 N.W. 190.
In State v. Nutley (1964), 24 Wis.2d 527, 129 N.W.2d 155, certiorari denied, 380 U.S. 918, 85 Sup.Ct. 912, 13 L.Ed.2d 803, this court said, at page 554:
"Under the terms of sec. 939.05(2)(b) and (c), Stats., a person may be vicariously liable for a substantive crime directly executed by another."
In Carter v. State (1965), 27 Wis.2d 451, 134 N.W.2d 444, 136 N.W.2d 561, we said at page 454:
"One who would have been an accessory or an accomplice or a particeps criminis before or after the fact at common law may now be directly charged with the commission of an offense as principal if he meets the `concerned in the commission of the crime' test of sec. 939.05 which provides in sub. (2)(b) one is concerned in the commission of a crime when he `intentionally aids and abets the commission of it.'"
Although we have no hesitancy in affirming the conviction of the defendant as a principal, we commend the practice of referring to sec. 939.05, Stats., by its number in the information in those instances where the district attorney knows in advance of trial that his proof is such that a conviction can only be based upon participation as described in sec. 939.05.
By the Court. — Judgment affirmed.