State v. Genova - 77 Wis. 2d 141, 252 N.W.2d 380 (1977)

Rule:

Wis. Stat. § 943.20(1)(a) covers more than "stealing from the owner."

Facts:

Defendant told an undercover law enforcement officer that he knew a man who had a stolen outboard motor for sale. After the officer expressed interest in buying it, defendant arranged a meeting between the officer and the thief and the sale was completed. There was no claim that defendant participated in taking the motor. Thereafter, defendant was charged with the crime of theft under Wis. Stat. § 943.20(1)(a), which the trial court dismissed. According to the trial court, the defendant was improperly charged with the crime of theft under sec. 943.20(1) (a), Stat., as the statute required that the defendant must first take the property from its owner and then, in addition, engage in one of the alternatively listed kinds of conduct -- carry away, use, conceal, transfer or keep the property. Since the complaint did not charge a taking, it was defective. The State appealed. 

Issue:

Would the act of assisting another in the sale of property which the defendant knew to be stolen constitute theft under Wis. Stat. § 943.20(1)(a)? 

Answer:

Yes.

Conclusion:

On appeal, the court pointed out that, because common law crimes had been abolished, the legislature's definition of the crime controlled. Section 943.20(1)(a) covered more than stealing from the owner as the legislative history clearly showed. The court reviewed in some detail the legislative history of § 943.20(1)(a), including the minutes of the Criminal Code Advisory Committee of the Wisconsin Legislative Council. The court also reviewed the definition of "theft" in Wis. Jury Instructions Crim. No. 1441, which the members of the Committee had agreed properly construed § 943.20(1)(a). Based on the grammatical construction of § 943.20(1)(a) and the intent of the draftsmen, the court agreed with the State that § 943.20(1)(a) should be read in the disjunctive and not the conjunctive and thus encompassed the conduct alleged in the complaint. Accordingly, the court reversed the order and remanded for further proceedings not inconsistent with the opinion.