## Facts

- Burns was a constable assisting others in pursuing and capturing Adamsky, a man described as insane.
- During the chase, Adamsky dropped or threw away a roll of money.
- A bystander (Kasdorf) found the roll, began counting it, and then handed it to Burns when Burns arrived.
- Burns took Adamsky into custody and later turned Adamsky over to the sheriff, but did not turn over the full amount of the money.
- After the sheriff questioned Burns about Adamsky’s money, Burns produced only part of it (reported in secondary sources as $200) and claimed that was all he had received.
- Additional money was later discovered concealed on Burns’s property (reported as being hidden in a glass jar in a barn), and Burns denied having any further funds when Adamsky’s guardian demanded the balance.
- Burns was charged, and the case went to the jury on larceny and larceny by bailee under Wisconsin law.
- The trial judge instructed the jury that Burns was a “bailee” of Adamsky’s money; the jury convicted Burns of larceny by bailee.
- Burns appealed, arguing that the court should have defined “bailee” for the jury instead of effectively deciding that element.

## Issues

1. Whether the trial court committed reversible error by instructing the jury that Burns was a “bailee” of Adamsky’s money, rather than defining “bailee” and leaving that determination to the jury.
2. Whether a bailment can exist, for purposes of Wisconsin’s larceny-by-bailee statute, without an express contract or “meeting of the minds,” when a person takes possession of another’s lost or cast-away property with a duty to account for it.

## Decision

- The Wisconsin Supreme Court affirmed the conviction for larceny by bailee.
- The court held that, on the undisputed manner in which Burns received and held the money, Burns was a bailee as a matter of law.
- The court concluded the instruction identifying Burns as a bailee did not improperly remove a disputed fact question from the jury.

## Legal Principles

- A bailment may arise without an express agreement; it can be created by lawful possession of another’s property coupled with a duty to keep, return, or account for it.
- A person who takes charge of property that has been lost or irresponsibly cast away is not treated as the owner; the law imposes obligations consistent with bailment.
- When the underlying facts about possession and the duty to account are not in dispute and point to only one legal result, the court may treat the existence of a bailment as a legal conclusion in its instructions.
- Under a larceny-by-bailee statute, converting property held in bailment supports criminal liability even though the initial possession was lawful.

## Conclusion

Because Burns took custody of money known to belong to Adamsky and was obligated to safeguard and account for it, the court treated him as a bailee as a matter of law; the trial judge therefore did not err by instructing the jury on that status, and Burns’s subsequent misappropriation supported the affirmed larceny-by-bailee conviction.


Burns v. State, 128 N.W. 987 (1911)