Goldman v. Fidelity & Deposit Co. 125 Wis. 390. larger sum had ever been allowed to come into his hands at any one time until the time of his embezzlement, which was sporadic and out of the ordinary course of events, and which immediately aroused plaintiff to activity to put a stop to such conduct by discharging O'Brien. In this view of the law we think the trial court was correct. The indemnity of this bond was against just such misconduct of the employee in breach of his instructions and of the customary precautions which his employer exercised, and the fact that, when he undertook to acquire to himself and embezzle his employer's money, he was able to make such attempts successful to the extent of some $106 before his delay in reporting and remitting had aroused his employer to suspicion and interference, was no proof that in the conduct of the business he had been allowed to exceed approximately the sum of $50. Apart from this one instance there is no proof in the record as to the amount of his periodical collections which occurred during one week in each month; but it does appear that certain itemized lists of such collections were introduced in evidence, and were, of course, before the trial court in rendering his decision. These would very probably indicate, approximately at least, the amount which O'Brien customarily obtained on each of his monthly collecting tours. But the appellant has failed to preserve in the bill of exceptions any copy of these statements from which we can approximate that information. We must therefore, under the familiar rule that error is not to be presumed but must be made to appear, assume that these statements served to support the trial court's conclusion that there was no evidence of a breach of this statement in the application, even if the same were deemed to be a warranty. Another subject upon which much is said in appellant's brief is the failure of plaintiff to immediately notify the defendant upon discovery of O'Brien's misconduct. His suspicions were not aroused until about the 18th of June, when he immediately went and found O'Brien in an unintelligible state of intoxication, made effort to regain from him the prop Goldman v. Fidelity & Deposit Co. 125 Wis. 390. erty in his hands, and, as soon as possible, to obtain information from him and to protect himself as far as he could against the loss, which effort seemed to have occupied him until the 5th or 6th of July, when he returned home, and on the 7th of July sent notice to the defendant. The court set aside the finding of the jury that this notice was given immediately, but held that the right of forfeiture which might he predicated upon such failure had been waived. This defense would seem to be unavailable to the defendant in any event because not pleaded, but, since it was treated as before the trial court, we should perhaps say that we agree with his conclusion of waiver. Defendant made no objection on this ground, but called on the plaintiff to make effort to get a settlement with O'Brien, then to make up his itemized claim or proofs of loss, which were made about October 20th, and thereafter called upon plaintiff to take steps for the criminal prosecution of O'Brien in accordance with a provision contained in the bond, and later called upon him to aid an agent of the defendant in an extended investigation of the accounts to ascertain the amount of the shortage. Defendant contends that it could not be charged with waiver until it had knowledge of the delay in sending this notice. That may be conceded, but when in October it was furnished, with plaintiff's itemized claim, it would seem that it must have had such information, for that claim was required to give the dates of the embezzlements and other information. That itemized claim was in evidence, open to inspection by the trial court, but has not been included in the bill of exceptions, so that again we must indulge in the presumption, if necessary, that it supplied facts upon which the trial court based its conclusion. If information was then conveyed to the defendant of this delay in sending the notice, there can be no doubt that the calling on the plaintiff to take various steps thereafter and finally joining issue in this action without predicating any defense upon such delay must be construed as a waiver thereof. Cannon v. Home Ins. Co. 53 Wis. 585, 593, 11 Hanley v. State, 125 Wis. 396. N. W. 11; Kidder v. Knights T. & M. L. Ind. Co. 94 Wis. 538, 69 N. W. 364; Fraser v. Etna L. Ins. Co. 114 Wis. 510, 90 N. W. 476. The only remaining question is as to the proof of O'Brien's embezzlement. On this subject his entries, reports, and statements made in the course of his duties in the guarantied employment are admissible against the surety. Stephens v. Shafer, 48 Wis. 54, 65, 3 N. W. 835; Clark v. Wilkinson, 59 Wis. 543, 551, 18 N. W. 481; Bank of Tarboro v. Fidelity & D. Co. 128 N. C. 366, 38 S. E. 908; Lancashire Ins. Co. v. Callahan, 68 Minn. 277, 71 N. W. 261. Proof was made of certain such statements and admissions from which, in connection with the accounts and records kept by plaintiff, he claimed to be able to state the amount, both of money and goods, which O'Brien had appropriated to his own use. Besides this, it was shown that defendant's agent, upon mutual investigation of such accounts and records, concurred with plaintiff in finding the shortage as stated and allowed by the judgment. This was sufficient to warrant the jury in finding embezzlement to that amount. We find no reason to re verse. By the Court.-Judgment affirmed. HANLEY and another, Plaintiffs in error, vs. THE STATE, Defendant in error. May 8-June 23, 1905. Criminal law and practice: Change of venue: Statutes: Construction: What constitutes extortion: Information: Necessary allegations: Variance: Instructions to jury: Evidence: Cross-examination. 1. The right to a change of venue in a criminal prosecution is purely statutory; hence, under sec. 4679, Stats. 1898 (providing for a change of venue for enumerated reasons "if the offense charged in the indictment or information be punishable by Hanley v. State, 125 Wis. 396. imprisonment in the state prison"), it is not error to refuse to change the place of trial of defendants charged in an information with malfeasance in office by wilful extortion, wrong, or oppression, under sec. 4550, Stats. 1898, which is punishable by imprisonment in the county jail or by fine. 2. The offenses punishable by sec. 4550, Stats. 1898 (under which any officer, agent, or clerk of the state, or of any county, town, etc., or in the employment thereof, who shall be guilty of any wilful extortion, wrong, or oppression therein, shall be subject to punishment), are those of extortion and oppression as they existed at common law. 3. At common law the offense of extortion is an abuse of public justice, which consists in an officer's unlawful taking by color of his office, from any man, any money or thing of value that is not due to him, more than is due him, or before it is due. 4. In a criminal prosecution for extortion, an information charging that defendants, as constables, "did conspire and did extorsively receive and take from the complainant, by color of their office, the sum of seventy-five dollars in money," for discharging a search-warrant in their possession, is sufficiently definite, without charging the wrongful taking as a fee, or that it was to the officers' own use. 5. In such case an allegation of the information that the officers obtained the sum "as and for a fee due to them" is wholly unnecessary, and, being not essentially descriptive of the offense or material to the jurisdiction, a discrepancy between that allegation and the proof is not a material variance, and, under secs. 2829, 4658, Stats. 1898, works no prejudice to the defendants. 6. In such case it is not error to refuse to instruct the jury, as requested, that no conviction of the offense charged would be justified unless defendants claimed the sum alleged to have been extorted as and for compensation for services rendered by them as officers. 7. In a criminal prosecution for extortion the evidence, stated in the opinion, is held to be sufficient to sustain a conviction. 8. In a criminal prosecution the information charged that defendants, as constables, wrongfully extorted money from the complainant for discharging a search-warrant. Held, that whether they acted by authority of a valid or invalid process was immaterial, since the jury found that money was extorted by color of their office. 9. In a criminal prosecution it is not error to permit inquiries on the cross-examination of defendant bearing on and relating to the field covered by his direct examination. Hanley v. State, 125 Wis. 396. ERROR to review a judgment of the municipal court of Milwaukee county: A. C. BRAZEE, Judge. Affirmed. Plaintiffs in error, William Hanley and Joseph Trost, were arrested, tried, and convicted upon the complaint of Paul Lehnhagen, made on August 28, 1903, before the district court for Milwaukee county, charging them with malfeasance in office by wilful extortion, wrong, or oppression. The complaint is as follows: "Paul Lehnhagen, being first, duly sworn, on oath complains to the district court of Milwaukee county that William Hanley and Joseph Trost, on the 24th day of February, A. D. 1903, in the county of Milwaukee, Wisconsin, he, the said William Hanley, and he, the said Joseph Trost, then and there being a duly elected, qualified, and acting constable of the town of Wauwatosa, by color of a certain warrant, commonly called a search-warrant, which they, the said William Hanley and Joseph Trost, then and there alleged to be in their possession, and that the said William Hanley and Joseph Trost afterwards, and whilst the said Paul Lehnhagen remained in their custody as aforesaid, to wit, on the 24th day of February, 1903, at the town of Wauwatosa, in the county of Milwaukee, Wisconsin, unlawfully, corruptly, deceitfully, extorsively, and by color of their said office, did then and there conspire to, and did, extort, receive, and take of and from him, the said Paul Lehnhagen, the sum of seventy-five dollars in money, of the value of seventy-five dollars, as and for a fee due to them, the said William Hanley and Joseph Trost, as such constables as aforesaid, for the obtaining and discharging of said warrant, as they, and each of them, the said William Hanley and Joseph Trost, then and there fraudulently and wickedly alleged, and that by means of said representations, and by color of their said offices, the said William Hanley and Joseph Trost did then and there wilfully extort from, and did wrong and oppress, the said Paul Lehnhagen as above set forth; whereas, in truth. and in fact, as they, the said William Hanley and Joseph Trost, then and there well knew, neither the said William Hanley nor the said Joseph Trost, nor both, had legal right to the said sum of seventy-five dollars, extorted from and paid as aforesaid by the said Paul Lehnhagen-all of which was |