Topolewski v. State

130 Wisc. 244, 109 N.W. 1037 (1906)

Facts

The Plankinton Packing Company suspected D of larceny. Dolan, who was indebted to D in the sum of upwards of $100, was discharged from the company's employ. D pressed Dolan for payment D 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 informed the company. The plan eventually required Dolan to get some meat to be placed on the loading platform and that D could simply drive up to the platform and take the meat. The company 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. D appeared and the loading boss was not in on the scheme and allowed D to take the barrels even helping him arrange them on his wagon. D told the platform boss that he had ordered the stuff the night before with Dolan. The fourth barrel was not loaded and D told the boss he wanted it marked and sent to him with the bill. D took full possession of the three barrels of meat with intent to deprive the owner permanently thereof and without compensating it therefore, wholly in ignorance, 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. D was arrested. D was charged with having stolen three barrels of meat, the value of $55.20, and was found guilty. The cause was appealed to and tried in the municipal court of 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 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. D appealed again.