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Law School Case Brief

Topolewski v. State - 130 Wis. 244, 109 N.W. 1037 (1906)

Rule:

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 intention 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.

Facts:

Defendant sought review of the decision of the Municipal Court of Milwaukee County (Wisconsin), which convicted him of possession of stolen property, and denied his motions to set aside the conviction, for new trial, and in arrest of judgment. Defendant was suspected by the packing company of having by criminal means possessed himself of some of the company's property and of having a purpose to make further efforts to that end. The company used an ex-employee in a sting operation to catch defendant stealing. The employee caused barrels of meat to be packed and put on the platform in readiness for the accused to take them. 

Issue:

Can a charge of larceny be sustained where goods were taken and carried away through the assistance of the legal owner of the stolen goods?

Answer:

No

Conclusion:

The court reversed defendant's conviction. Evidence was allowed of a hearsay character that the accused, prior to the occurrence in question, had been a party to a criminally appropriating property of the packing company. The court determined that the case was near the border line between consent and nonconsent to the taking of the property. Without the property being placed on the loading platform and defendant being allowed to take it, there would have been no deprivation. The packing company, through its agent, suggested the commission of the offense and invited defendant's plans to that end. The court determined that the plan was a joint creation of the two and that it required each to be an active participant in its consummation.

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