Hamilton v. State, 171 Wis. 203.

port the occurrence to the police without another view of the man at that time. Later in the evening, after the defendant had been arrested and was exhibited to Peil with a number of other men at the police station, Peil states he was asked by the police, referring to the men before him, “What man he saw running away from the filling station?" On the trial he was asked the question, "How was the defendant dressed that night at the police station?" Answer: “Well, he had a coat on, a cap with rounded sides, a flat-topped cap, and he had also khaki pants and leggings on—and overcoat up about to his knees." In answer to a question if he saw any one at the police station "dressed similar to the man" whom he saw leaving the oil house he answered: "Well, Mr. Hamilton was the only man that looked something like him. He was the only man that was dressed mostly like him that left the filling station." This is as near as Peil could identify the man he saw coming from the oil house at the time and occasion. The testimony of the witness Larsen, who was confined to the jail and occupied a cell opening on the same aisle as did defendant's cell, is that the cells were left open one night in March and that about midnight, while he walked in the aisle, he heard defendant praying for about ten minutes or so in indistinct speech and understood defendant to say "Oh, God, why did I kill this man? Oh, God, forgive me;" that he did not see the defendant at the time he heard the words, nor could he tell whether or not he was asleep. All the other evidence in the case consists of circumstances surrounding the shooting, facts and incidents of the defendant's life, his whereabouts on the evening of the murder, his conduct when arrested and when subject to identification by the police on the same evening. The state, in addition to the foregoing testimony, lays stress on the impeachment of defendant's testimony by his former conviction and many contradictions on the witness stand. The state also urges that the following facts elicited on the trial showing falsification by defendant tend to prove that

Hamilton v. State, 171 Wis. 203.

Hamilton was the man who committed the murder: that he gave his name when arrested as Eli J. Long, when in fact he lived in Racine under the name of George E. Hamilton; that he testified at length that his real name is Eli J. Long and that he changed it to Hamilton, but that in 1917 he again changed it to Long; that he falsified as to how he traveled in going from his residence to the postoffice on the evening in question; as to the places he had resided in Racine before this evening; as to the treatment of him by police officers after his arrest and before being released on the evening of the shooting; about carrying money in his sock on the evening of the shooting.

We have searched the evidence and there is no evidence of direct proof that defendant is the man who fired the shots that killed Warner, except the testimony of Peil as above stated. True, the evidence pointed out by the state as tending to show that defendant made false statements in the respects referred to may have been considered by the jury as tending to indicate guilt, but even in this view of the case it is not sufficient, in connection with Peil's and Larsen's testimony, to remove from our minds the impression that it lacks convincing power, and has not the probative weight to justify defendant's conviction beyond all reasonable doubt. Furthermore, the testimony of the Gressing sisters as exhibited by the affidavit on the motion for a new trial for newly discovered evidence is important in view of the unsatisfactory state of the evidence on the subject of defendant's identification. Under the broad powers conferred on this court by sec. 2405m, Stats., we find it impossible to say that the evidence on the main controversy was all before the jury and that upon the record before us we are satisfied that justice has been done by the conviction of the defendant.

As declared in Gerke v. State, 151 Wis. 495, 139 N. W. 404, a person convicted of a crime has the right to demand the solemn judgment of this court as well as that of the trial

Trustees of Armenia Lodge v. U. S. F. & G. Co. 171 Wis. 210.

See,

court as to whether his guilt was sufficiently proven. also, Lonergan v. State, 111 Wis. 453, 87 N. W. 455; Koscak v. State, 160 Wis. 255, 152 N. W. 181; Kuhl v. State, 167 Wis. 495, 167 N. W. 743.

By the Court.-The judgment of the circuit court is reversed, and the action remanded for a new trial. The warden of the state prison will deliver the plaintiff in error into the custody of the sheriff of Racine county, who will hold him in custody to await the further order of the court.

TRUSTEES OF ARMENIA LODGE No. 97, I. O. O. F., Respondent, vs. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant: SAFIR, interpleaded, Respondent. January 15-April 6, 1920.

Principal and surety: Evidence: Time of defalcation: Allegations in information to which defaulter pleaded guilty.

In an action on a fidelity bond to recover a loss sustained by the defalcation of one of plaintiff's trustees, the time of defalcation alleged in an information charging embezzlement, to which the trustee pleaded guilty, controlled as to the time of the defalcation, in the absence of other specific evidence thereof.

APPEAL from a judgment of the circuit court for Milwaukee county: JOHN J. GREGORY, Circuit Judge. Affirmed.

Action begun in the civil court against the United States Fidelity & Guaranty Company on a fidelity bond to recover loss sustained by plaintiff by the defalcation of one of its trustees, Mahler. The defendant company caused one of Mahler's co-trustees, Safir, to be interpleaded, claiming that if judgment went against it Safir would be liable over to it on account of his negligence. At the close of the testimony all parties moved for a directed verdict. The court discharged the jury, made findings of fact to the effect that the defalcation took place during the life of the bond; that

Trustees of Armenia Lodge v. U. S. F. & G. Co. 171 Wis. 210.

Safir was not guilty of negligence, and judgment was entered against the United States Fidelity & Guaranty Company in favor of plaintiff for $800, the amount of the bond, and costs, and in favor of Safir for costs. The defendant appealed to the circuit court, where the judgment was affirmed, and thereupon it appealed to this court.

For the appellant there was a brief by Bloodgood, Kemper & Bloodgood, attorneys, and Emmet Horan, Jr., of counsel, all of Milwaukee, and oral argument by Mr. Horan.

Morris Stern of Milwaukee, for the respondent Trustees of Armenia Lodge..

Louis L. Cohen of Milwaukee, for the respondent Safir. The following opinion was filed February 10, 1920:

VINJE, J. Only questions of fact are presented by this appeal. It is claimed (a) that there is no proof that the defalcation took place during the life of the bond, and (b) that Safir was guilty of negligence as a co-trustee. The bond was issued June 7, 1915, and renewed annually up to the time of the trial. Mahler pleaded guilty to an information charging embezzlement of the funds January 3, 1917, and upon examination in court when such plea was made he testified that the bonds were converted January 3, 1917. The record of this plea and examination was received in evidence without objection. In the absence of other specific evidence as to the time of defalcation the time alleged in the information controls. The trial court therefore properly found that the embezzlement took place during the life of the bond.

The trial court also found that Safir was not guilty of negligence; that he was elected trustee May 17, 1916, and served only for a few months. Both of these findings are sustained by the evidence. It appears that in the summer of 1916 he was elected Noble Grand. As such he was not a member of the board of trustees and he never was reelected a trustee so far as the proof shows. Since he was

Padden v. Padden, 171 Wis. 212.

not a trustee at the time of the defalcation he could breach no trust duty in respect thereto.

By the Court.-Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on April 6, 1920.

PADDEN, Appellant, vs. PADDEN and another, Respondents. March 9-April 6, 1920.

Deeds: Deposit with third person for record and delivery after grantor's death: Intention of grantor.

1. In an action to set aside a deed, the fact that the grantor, after signing the deed, handed it to a third person with instructions to keep it and not record it or deliver it to the grantee until after the grantor's death, is held not to show delivery of the deed with an intention of parting with title and control of the lands.

2. Without an intention to transfer title, none passes by the mere execution of a deed and handing it to a third person to be held subject to the control of the grantor.

APPEAL from a judgment of the circuit court for St. Croix county: GEORGE THOMPSON, Circuit Judge. Affirmed.

Action to set aside a deed from Michael Padden to John J. Padden of forty acres of land claimed previously to have been conveyed by Michael Padden to the plaintiff, and for the quieting of plaintiff's title as against any claim of John J. Padden.

Michael Padden is the father of John J. Padden, James Padden, and of the plaintiff. On or about November 15, 1916, he was the owner of eighty acres of land. He executed a deed to forty acres thereof, naming plaintiff as grantee, and a deed to the other forty acres, naming James Padden as grantee. The deeds were drawn by one Hughes, who had from time to time transacted some business for the