March 6, 1959 —
April 7, 1959.
APPEAL from a judgment of the county court of Langlade county, upper municipal branch: THOMAS E. McDOUGAL, Judge. Affirmed in part; reversed in part.
For the appellant there was a brief and oral argument by Donald S. Eisenberg of Madison.
For the respondent there was a brief by the Attorney General and William A. Platz, assistant attorney general, and oral argument by Mr. Platz.
On October 30, 1957, a complaint was filed in the upper municipal branch of the county court of Langlade county, charging that the appellant on October 1, 1957, at the city of Antigo, Wisconsin, wilfully and feloniously made, with intent to defraud, one check in the amount of $60 contrary to sec. 943.38 (1) (a), Stats. 1955, 1957.
A second count of the complaint charged that the appellant wilfully and feloniously uttered as genuine the same forged check in the amount of $60, knowing it to have been falsely made, contrary to sec. 943.38 (2), Stats. 1955, 1957.
A third count charged that the appellant had been convicted of obtaining money under false pretenses on November 19, 1953; that the above conviction had not been reversed or appealed from, and that appellant was, therefore, guilty of being a repeater, contrary to sec. 939.62 (2), Stats. 1955, 1957.
A warrant to the complaint above was issued, returned, and filled. The appellant appeared in court without counsel and the complaint was read to him. He entered a plea of guilty to all three counts. The court said before imposing the following sentences: "I think you must like Waupun, the way you come into court. Every time you get drinks into you, you start writing checks and it is always around November, November 24, 1950, and November 19, 1953. We are going to have to put a stop to this and the only way to stop you is to give you time to think about it. . . ."
The sentence imposed is as follows: "You, Sheridan Nichols are hereby sentenced to the state prison at Waupun at hard labor for a term of five (5) years on count No. 1; five (5) years on count No. 2 to run consecutively to first sentence; a term of three (3) years on count No. 3 to run consecutively to the second sentence."
The defendant, Sheridan Nichols, appeals from that part of the judgment rendered and entered in this action on October 30, 1957, in favor of the state of Wisconsin, that adjudged said defendant guilty of forgery, contrary to sec. 943.38 (1) (a), Stats., and uttering, contrary to sec. 943.38 (2).
The state of Wisconsin concedes the fact to be that there was but one instrument involved. Therefore, this case presents but one question: Did the legislature, when it created sec. 943.38 (1) (a) and (2), Stats. 1955, new Criminal Code, intend that forgery and uttering of an instrument by one as part of the same transaction constitute one crime or two separate distinct crimes?
"The problem here is to determine the reasonable intendment of the act."
See also State ex rel. Husting v. Board of State Canvassers (1914), 159 Wis. 216, 150 N.W. 542, and State ex rel. Madison v. Industrial Comm. (1932), 207 Wis. 652, 242 N.W. 321.
Mr. William A. Platz, in his article in 1956 Wisconsin Law Review, entitled "The Criminal Code, Thumbnail History of the Code," states in part (pp. 350, 353, 376):
"Six years of research, drafting and redrafting, propaganda pro and con, more redrafting, sometimes bitter disagreement, debate, compromise, and more redrafting, have culminated in the enactment of ch. 696, Laws of 1955, creating a new Criminal Code and amending many other sections of the Wisconsin statutes. Its effective date is July 1, 1956. . . .
"The objectives of the code, as set forth in the 1953 bill may be summarized as follows: (1) Simplification of language. (2) Modernization in the light of altered criminal procedure and penal policy including probation and parole. (3) Codification by incorporating case law into statutes. (4) Codification by stating in one chapter general principles applicable to all crimes and classifying crimes as nearly as possible according to the social interest protected. (5) Maintaining a fair balance between society's interest in speedy and efficient law enforcement and its interest in protecting accused persons from unwarranted deprivation of liberty by criminal process. . . .
"Forgery under sec. 943.38 is considerably more complex than under the 1953 draft, but more closely follows the penalty distinctions of the former law. The subjects of forgery are, however, described in more general terms than formerly. Forgery and uttering, formerly separate crimes, are now combined so that one who both forges and utters is guilty of but one offense. Considering that the making of a forged instrument is but a preharm offense — an attempt to defraud — it is logical that it should be merged with the uttering, which is usually the consummation of the fraud."
We conclude that the legislature, when it created sec. 943.38 (1) (a) and (2), Criminal Code, Stats. 1955 (entitled "Forgery"), combined and merged into a single offense forgery and uttering, so that one who both forges and utters is guilty of but one offense.
The sentence imposed on count No. 1 is affirmed respecting said offense.
The judgment of the lower court as to conviction of the defendant on count No. 2 being a nullity, is reversed and the sentence and commitment thereunder vacated with instructions to the trial court to dismiss count No. 2 of the complaint.
There was no appeal from the sentence on count No. 3 and, therefore, no opinion is expressed as to its validity.
By the Court. — The provisions of the judgment sentencing the defendant on the first count are affirmed, and the provisions of the judgment sentencing the defendant on the second count are hereby reversed and the commitment thereunder is vacated and set aside.