State v. Genova
1977 Wisc. LEXIS 1289, 252 N.W.2d 380, 77 Wis. 2d 141 (1977)
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Rule of Law:
The act of intentionally transferring movable property, knowing it to be stolen and with the intent to permanently deprive the owner of possession, constitutes the crime of theft under Wisconsin Statutes § 943.20(1)(a), even if the individual did not participate in the initial taking of the property from the owner.
Facts:
- The defendant informed undercover law enforcement officers that he knew a man (his co-defendant) who possessed a "hot" (stolen) outboard motor available for sale for $400.
- After the officers expressed interest in purchasing the motor, the defendant arranged a meeting between them and his co-defendant.
- During the arranged meeting, the sale transaction for the outboard motor was completed between the co-defendant and the officers.
- The outboard motor had been stolen from its owner, William C. Bowles, several weeks prior to the defendant's involvement.
- The criminal complaint filed against the defendant did not assert that he participated in any way in the original act of taking the motor from William C. Bowles.
Procedural Posture:
- A criminal complaint was filed in the trial court, charging the defendant and an accomplice with theft under Wisconsin Statutes §§ 943.20(1)(a) & (3)(b) and 939.05.
- The trial court dismissed the complaint, interpreting the theft statute as requiring an initial taking of property from the owner, which was not alleged against the defendant.
- The State appealed the trial court's dismissal to the Supreme Court of Wisconsin.
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Issue:
Does assisting another in the sale of property known to be stolen constitute being a party to the crime of theft under Wisconsin Statutes §§ 939.05 and 943.20(1)(a), even if the defendant did not participate in the initial taking of the property from its owner?
Opinions:
Majority - Abrahamson, J.
Yes, assisting another in the sale of property known to be stolen does constitute being a party to the crime of theft under Wisconsin Statutes §§ 939.05 and 943.20(1)(a), even if the defendant did not participate in the initial taking of the property from its owner. The court concluded that § 943.20(1)(a) should be read in the disjunctive, meaning that any one of the enumerated actions—"takes and carries away," "uses," "transfers," "conceals," or "retains possession of"—is sufficient to satisfy the conduct element of theft. The court emphasized that common law crimes were abolished in Wisconsin, making the statutory definition paramount, and that the legislative history of the 1955 Criminal Code revision (including prior drafts from 1951 and 1953) clearly indicated an intent to consolidate various property offenses, eliminating technical distinctions like the necessity of a prior taking from the owner. The phrase "and carries away" was added to further define "takes," not to impose a requirement that all other prohibited acts must follow an initial taking. This interpretation was supported by the amicus curiae brief of Professor Frank Remington, a member of the Criminal Code Advisory Committee, as well as the 1962 Wisconsin Jury Instruction Committee's guidance, which allowed for the selection of relevant verbs to describe the alleged form of theft, and an article by Professor Gordon Baldwin reaching the same conclusion.
Analysis:
This decision significantly broadens the scope of Wisconsin's theft statute, moving beyond rigid common-law requirements for a single 'taking' from the owner. By clarifying that acts like 'transferring' stolen property, even by someone not involved in the original theft, fall under the definition of theft, the court effectively prevents individuals involved in the disposition of stolen goods from escaping culpability simply because they weren't the initial thief. This interpretation simplifies prosecution for a range of behaviors related to stolen property and reinforces the legislative intent to create a comprehensive theft offense that encompasses various forms of misappropriation, making it easier to hold all parties involved in the chain of stolen goods accountable.
