#### Topolewski, Plaintiff in error, vs. The State, Defendant in error.

*November 14*

December *4, 1906.*

*Criminal law: Trial: Reception of evidence: Hearsay: Appeal and; error: Harmless error: Larceny: Elements of offense: Trap set for offender.*

1. Subject to recognized exceptions hearsay evidence is not allowable, and its admission is presumed to be prejudicial unless the contrary clearly appears.

2. 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. The evidence should be ' confined to the particular offense charged.

3. In a criminal prosecution tried by the court without a jury the admission of improper evidence is to be regarded on appeal as *245having been harmless, unless it clearly appears that otherwise the finding would probably have been different.

4. In a prosecution for larceny the prosecutor, a packing company, procured D., its employee, to, arrange with defendant for the latter to consummate, as he supposed, larceny of the prosecutor’s goods. Defendant in the course of the negotiations so sanctioned by the prosecutor suggested to D. the plan to be followed, which was agreed upon between the two, each to be an actor in the matter. Subsequently the plan was sanctioned by the prosecutor, the purpose on the part of the prosecutor being to entrap and bring defendant to justice. The prosecutor carried out the part of such plan necessary to its consummation assigned to it in the agreement between defendant and D., defendant not knowing that the prosecutor was advised of the impending- offense, and at the finality caused ofie of its employees, tacitly at least, to consent to the taking of the goods, such enlployee not knowing the real nature of the transaction. *Held:*

(1) The conduct of the prosecutor took from the transaction the element of trespass or nonconsent essential to the crime.

(2) When D. agreed to procure the prosecutor to do the acts necessary for defendant to consummate his part of the plan, the prosecutor in legal effect agreed thereto.

(3) The acts of the prosecutor constituted consent to the appropriation of the goods by defendant.

5. Where the owner of property, by himself or his agent, actually or constructively, aids in the commission of the offense, as intended by the wrongdoer, by performing or rendering unnecessary some act in the transaction essential to the offense, the would-be criminal is not guilty of all the elements of the offense.

EbeoR to review a judgment of the municipal conrt of Milwaukee county: A. 0. Bbazeb, Judge.

*Reversed.*

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- 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 Milwau-*246lcee county until such, payment should he 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, 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. Einally 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 employees 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 *247proposition 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 hej 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. f~~

For the plaintiff in error there was a brief by *Blenski & Cordes,*attorneys, and *Lenicheck, Fairchild &*Boesel, of counsel, and oral argument by *E. T. Fairchild.*

They contended, *inter*alia, that there is a difference between a case where the owner of goods sets a trap to catch a thief, merely leaving the goods exposed in order that they may be taken, and the ease where the owner, by his agent or otherwise, solicits a person suspected of an intention to steal to come forward and commit *248tbe criminal act. In. tbe latter case tbe taking is with tbe consent of tbe owner, and therefore does not constitute larceny. 18 Am. & Eng. Ency. of Law (2d ed.) 472; *Love v. People,*160 Ill. 501, 32 L. R. A. 139; *Connor v. People,*18 Colo. 373, 25 L. R. A. 341, and note; *Comm. v. Hollister,*157 Pa. St. 13, 25 L. R. A. 349; *State vi. Adams,*115 N. C. 775; *Saunders v. People,*38 IVIicb. 218, 220; *People v. Mc-Cord,*76 Mich. 200.

For the defendant in error there was a brief by tbe *Attorney' General*and *A. C. Titus,*assistant attorney general, and oral argument by *Mr. Titus.*

They contended, *inter alia,*that tbe act on tbe part of tbe prosecutor in setting out tbe goods upon the platform was only facilitating a plan tbe defendant bad previously devised for getting bold of tbe property. Such act did not amount to a consent to tbe taking of tbe property of tbe prosecutor. *People v. Hanselman,*76 Cal. 460; *Dodge v. Brittain,*Meigs, 84; *Varner v. State,*72 Ga. 745; *Bex v. Egginton,*2 Leach C. O. 913; *Peg. v. Williams,*1 C. & K. 195; *Pex v. Norden,*2 East P. C. 666; *King Whittingham,*2 Leach C. C. 912; *Comm. v. Nott,*135 Mass. 269; *State v. Jansen,*22 Kan. 498; *Pigg v. State,*43 Tes. 108; *Thompson v. State,*18 Ind. 386; 1 Wharton, Grim. Law, sec. 917.

Marshall, J.

Evidence was allowed of a hearsay character that tbe accused, prior to tbe occurrence in question, bad been a party to criminally appropriating property of, tbe packing company. Mr. Layer was permitted to testify that tbe accused at one time conspired with Peter Juston to so obtain some of its property and succeeded in that regard as said Juston informed tbe witness, and as was indicated by *the*books kept by Juston and papers manipulated by tbe latter. Juston was permitted to testify to such unlawful appropriation of property so far as tbe purpose of tbe accused had to do with the transaction. Mere hearsay evidence, siibject to some *249exceptions not important Rere, is never allowable and tbe admission of it is presumed to be prejudicial, unless tbe contrary clearly appears. Again, on tbe trial of a person for a particular offense evidence tending to prove that be bas 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 be bas a right, which should not be trespassed upon at all, to have tbe evidence in support of such charge confined to that particular offense. That, of course, bas nothing to do with tbe rule allowing evidence of a former conviction as bearing on tbe subject of credibility of tbe accused in case of bis offering himself as a witness, nor tbe rule permitting proof of other offenses so intimately connected with tbe one charged as to be evidentiary of tbe intent essential. Oases *oí*tbe latter character too often lead to tbe improper admission of evidence Contrary to tbe general rule above stated.

Notwithstanding tbe foregoing tbe admission of tbe improper evidence does not give cause for a reversal here. In a case tried by tbe court tbe admission of improper evidence is to be regarded on appeal as having been harmless, unless it •clearly appears that but therefor tbe finding would probably have been different. *Harrigan v. Gilchrist,*121 Wis. 127, 314, 99 N. W. 909. We are unable to see any clear indication that tbe plaintiff in error was prejudiced by tbe error in this •case. If tbe judgment is fatally tainted with error tbe fault lies in a misconception of the law as regards trespass being essential to tbe crime of larceny or as to, under what circumstances, in regard to the conduct of tbe owner of tbe subject of'the larceny, such element does not exist.

It was frankly conceded on tbe oral argument by tbe *250learned, attorney general that if the plaintiff in error committed the crime of larceny Dolari, 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 tlie 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, and at the finality causes one of its employees to, tacitly at least, consent to the taking of the goods, not knowing of the real nature of the transaction, is such third person guilty of the crime of larceny, or does the conduct of such person take from the transaction the element of trespass or nonconsent essential to such crime ?

It will be noted that the plan for depriving the packing company of its property originated with the accused, but that it was wholly impracticable of accomplishment without the property being placed on the loading platform and the accused not being interfered with when he attempted to take it. When Dolan agreed to procure such placing the packing company in legal effect agreed thereto. Dolan did not expressly consent, nor did the agreement he had with the packing company authorize him to do so, to the misappropriation, *251of tbe property. Did tbe agreement in legal effect witb tbe accused to place tbe property of tbe packing company on tbe loading platform, where it could be appropriated by tbe ac- ■ eused, if be was so disposed and was not interfered witb in so doing, tbougb bis movements in that regard were known to tbe packing company, and bis taking of tbe property, bis efforts to that end being facilitated as suggested, constitute consent to sucb appropriation?

Tbe case is very near tbe border line, if not across it, between consent and nonconsent to tbe taking of tbe property. In *Reg. v. Lawrance, 4*Cox C. C. 438, it was held that if tbe property was delivered by a servant to tbe defendant by tbe master’s direction tbe offense cannot be larceny, regardless of tbe purpose of tbe defendant. In this case tbe property was not only placed on tbe loading platform, as was usual in delivering sucb goods to customers, witb knowledge that tbe accused would soon arrive, having a formed design to take it, bixt tbe packing company’s employee in charge of the platform, Ernst Klotz, was instructed that tbe property was placed there for a man who would call for it. Nlotz from sucb statement bad every reason to infer, when tbe accused arrived and claimed tbe right to take tbe property, that be was tbe one referred to and that it was proper to make delivery to him and be acted accordingly. While be did not physically place tbe property, or assist in doing so, in tbe wagon, bis standing by, witnessing sucb placing by tbe accused, and then assisting him in arranging tbe wagon, as tbe evidence shows be did, and taking tbe order, in the usual way, from tbe accused as to tbe disposition of tbe fourth barrel, and bis conduct in respect thereto, amounted, practically, to a delivery of tbe three barrels to tbe accused.

In *Rex v.*Egginton, 2 B. & P. 508, we-have a véry instructive case on tbe subject under discussion here. A servant informed bis master that be bad been solicited to aid in robbing tbe latter’s bouse. By tbe master’s' direction tbe *252servant opened tbe bouse, gave tbe would-be thieves access thereto, and toot them to the place where tbe intended subject of tbe larceny bad been laid in order that they might take it. All this was done with a view to tbe apprehension •of tbe guilty parties after tbe accomplishment of their purpose. Tbe servant by direction of tbe master not only gave •access to tbe bouse but afforded tbe would-be thieves every facility for taking tbe property, and yet tbe court held that tbe crime of larceny was complete, because there was no direction to tbe servant to deliver tbe property to tbe intruders or consent to their taking it. They were left free to commit tbe larceny, as they bad purposed doing, and tbe way was made easy for them to do so, but they were neither induced to commit tbe crime, nor was any act essential to tbe •offense done by any one but themselves.

In harmony with tbe case last discussed, in *Williams v. State,*55 Ga. 391, cited by counsel for tbe plaintiff in error, it was held that tbe owner of property may make everything ready and easy for a larceny thereof by one purposing to steal tbe same, and then remain passive, allowing tbe would-be criminal to perpetrate tbe offense of larceny as to every essential part of such offense, without sacrificing tbe element of trespass or nonconsent; but if one ostensibly acting as an accomplice, but really for tbe owner of tbe property, for tbe purpose of entrapping tbe would-be criminal, does acts amounting to tbe constituents of tbe crime of larceny, although tbe accused concurred in and supposed he,prompted tbe act, be is not guilty of larceny. The circumstances of that case were these: Tbe would-be criminal when be took tbe property supposed be was committing the offense of larceny and that bis associate was criminally participating therein, but because, as a fact, such person was acting by direction of tbe owner, and actually placed tbe property in tbe bands of tbe taker, tbe element of nonconsent essential to larceny did not characterize tbe transaction. A distinc-*253lion was drawn between one person inducing another to commit tbe crime of larceny of tbe former’s goods or such person-aiding in tbe commission of tbe offense, so far as tbe mental attitude of sucb other is concerned, by doing some act essential to sucb an offense, and merely setting a trap to catch-a would-be criminal by affording him tbe freest opportunity to commit tbe offense. Tbe latter does not sacrifice tbe element of nonconsent. *State v. Jansen,*22 Kan. 498; *Varner v. State,*72 Ga. 745; *State v. Duncan,*8 Rob. (La.) 562; *Reg. v. Williams,*1 C. & K. 195; *Rex v. Egginton,*2 B. & P. 508.

In tbe case before us tbe owner of tbe property through its agent, Dolan, did not suggest tbe plan for committing tbe offense of larceny, which was finally adopted, but tbe evidence-shows, conclusively, that by tbe consent or direction of tbe packing company, through words or otherwise, be suggested tbe commission of sucb offense and invited from tbe accused plans to that end. The fair construction of thé evidence is that in tbe finality tbe plan was a joint creation of tbe two and that it required each to be an active participant in its consummation. It seems that there is good reason for bold-ing that tbe situation in that respect falls within tbe condemnatory language in tbe opinion of tbe court in *Love v. People,*160 Ill. 501, 43 N. E. 710, cited to our attention by counsel for tbe plaintiff in error. That will be apparent from tbe closing words of tbe opinion, which are as follows:

> ' “A contemplated crime may never be developed into a consummated act. To stimulate unlawful intentions for tbe purpose and with tbe motive of bringing them to maturity so tbe consequent crime may be punished, is a dangerous practice. It is safer law and sounder morals to bold, where one arranges to have a crime committed against bis property or himself, and knows that an attempt is to be made to encourage others to commit the act by one acting in concert with such owner, that no crime is thus committed. Tbe owner and bis agent may wait passively for tbe would-be criminal to perpe*254trate tbe offense, and each and every part of it, for bimself, but they must not aid, encourage, or solicit him that they may seek to punish.”

We cannot well escape the conclusion that this case falls under the condemnation of the rule that where the owner of property by himself or his agent, actually or constructively, •aids in the commission of the offense, as intended by the wrongdoer, by performing or rendering unnecessary some act in the transaction essential to the offense, the would-be -criminal is not guilty of all the elements of the offense. Here Mr. Layer, acting for the owner of the property, packed or ¡superintended the packing of the four barrels of meat as suggested by the owner’s agent in the matter, Dolan, and caused the same to be placed on the platform, knowing that the accused would soon arrive to take them, under an arrangement between him and its agent, and directed its platform boss, when he inquired as to the purpose of so placing the barrels, “Let them go; they are for some man and he will call for them.” He, from the standpoint of such employee, directed the latter to deliver the barrels to the man when he called, the same in all respects as done in *Williams v. State,*55 Ga. 391. He substantially made such delivery, by treating the accused when he arrived upon the scene as having a right to take the property. In that the design to trap a criminal went a little too far, at least, in that it included the doing of an act, in effect preventing the taking of the property from being characterized by an element of trespass.

The logical basis for the doctrine above discussed is that there can be no larceny without a trespass. So if one procures his property to be taken by another intending to commit larceny, or delivers his property to such other, the latter purposing to commit such crime, the element of trespass is wanting and the crime not fully consummated however plain may be the guilty purpose of the one possessing himself of such property. That does not militate against a person’s being free to set a trap to catch one whom he suspects of an in*255tention to commit the crime of larceny, but the setting of such trap must not go further than to afford the would-be thief the amplest opportunity to carry out his purpose, formed without such inducement on the part of the owner .of the property, as to put him in the position of having consented to the taking. If I induce one to come and take my property and then place it before him to be taken, and he takes it with criminal intent, or if knowing that one intends to take my property I deliver it to him and he takes it with such intent, the essential element of trespass involving nonconsent requisite to a completed offense of larceny does not characterize the transaction, regardless of the fact that the moral turpitude involved is no less than it would be if such essential were present. Some writers in treating this subject give so much attention to condemning the deception practiced to facilitate and encourage the commission of a crime by one supposed to have such a purpose in view, that the condemnation is liable to be viewed as if the deception were sufficient to excuse the would-be criminal, or to preclude his being prosecuted; that there is a question of good morals involved as to both parties to the transaction, and that the wrongful participation of the owner of the property renders him and the public incapable of being heard to charge the person he has entrapped with the offense of larceny. That is wrong. It is the removal from the completed transaction, which from the mental attitude of the would-be criminal may have all the ingredients of larceny, from the standpoint of the owner of the property, of the element of trespass or nonconsent. When such element does not characterize a transaction involving the full offense of larceny so far. as concerns the mental purpose of such would-be criminal is concerned, is often not free from difficulty and courts of review should incline quite strongly to support the decision of the trial judge in respect to the matter and not disturb it except in a clear case. It seems that there is such a case before us.

If the accused had merely disclosed to Dolan, his ostensible *256accomplice, a purpose to improve the opportunity when one should present itself to steal barrels of meat from the packing company’s loading platform, and that Jmd been communicated by Dolan to the company and it had merely furnished the accused the opportunity he was looking for to carry out such purpose, and he had improved it, the situation would be quite different. The mere fact that the plan for obtaining the property was that of the accused, under the circumstances nf this case, is not controlling.' Dolan, as an emissary of the packing compány, as we have seen, was sent to the accused to arrange, if the latter were so disposed, some sort of a plan for taking some of the company’s property with the intention of stealing it. Though the accused proposed the plan Dolan agreed to it, which involved a promise to assist in carrying it out, ostensibly as an accomplice, but actually as an instrument of the packing company. That came very near, if it did not involve, solicitation by the company, in a secret way, for the accused to take its property as proposed. . With the other element added of placing such property on the loading platform for the accused to take pursuant to the agreement, with directions, in effect, to the person in charge of the platform, to let the accused take it when he came for that purposé, we are unable to see any element of trespass in the taking which followed. The packing company went very significantly, further than the owner of the property did in *Rex v.*Egginton, 2 B. & P. 508, which is regarded as quite an extreme case. It solicited the opportunity to be an ostensible accomplice in committing the offense of larceny instead of being solicited in that regard, and the property was in practical effect delivered to the would-be thief instead of its being merely placed where he could readily trespass upon the rights- of the packing company by taking it. When one keeps in mind the plain 'distinction between merely furnishing opportunity for the execution of a formed design to commit larceny and negotiations for the purpose of developing *257a scheme to commit tbe offense, regardless of who finally proposes tbe plan jointly adopted, and not facilitating tbe execution of tbe plan by placing tbe property pursuant to tbe arrangement where it can readily be taben, but in practical effect, at least, delivering tbe same into tbe possession of tbe would-be thief, one can readily see that tbe element of trespass, involving consent, is present in tbe first situation mentioned and not in tbe last, and that the latter pretty clearly fits tbe circumstances of this case.

*By the Court.*— Tbe judgment is reversed, and tbe cause remanded for a new trial.