I. It is claimed that there was no preliminary examination of the defendant for the crime charged in the information, and hence, that the district attorney had no au*572thority to file the information, and that the defendant was illegally tried under it for the offense charged therein. The only ruling of the court which presents this question, is the denial of the motion in arrest of judgment founded in part upon such alleged absence of & preliminary examination.
Before the information was filed, a complaint in writing under oath was made to a justice of the peace against the defendant, charging him with having disposed of two seed-sowers or cultivators contrary to the written or printed instructions of Yan Brunt, Barber & Co., his principals and the owners of the machines, by means whereof that firm sustained damage, etc. This complaint evidently charged an offense under ch. 85, Laws of 1873, and was drawn with reference to that statute. A criminal warrant was issued on such complaint by the justice, and the defendant was arrested and brought before the justice, and a preliminary examination was had. The testimony taken on such examination tends to show the defendant guilty of the offense charged in the information. The justice entered a finding and order as follows: “ The court finds from the testimony reason to believe the defendant guilty of larceny as defined in the statutes of Wisconsin, and he is held to bail in the sum of $500 for his appearance at the next term of the circuit court for Sauk county.” The proceedings before the justice on such examination, with the testimony taken thereon, were returned by the justice to the circuit court, and have been sent to this court with the record of the case.
In the view we have taken of the case, it is not necessary to determine whether a district attorney may lawfully file an information against a person not a fugitive from justice, without a preliminary examination before a committing magistrate. Probably he has no authority to do so, and for the purposes of this case it will be assumed that he has not. See Laws of 1871, ch. 137, sec. 7 (Tay. Stats., 1930, § 22).
Since the adoption, in 1870, of the amendment to see. 8, art. I of the constitution, by virtue of which amendment in-*573formations bare, to a great extent, taken the place of indictments, the legislature seems to have full power to prescribe by whom, in what manner, and under what circumstances, an information may be exhibited against any person for any criminal offense. In the case of fugitives from justice, the act of 1871, supra, vests the power to file an information without a preliminary examination in the district attorney. In other cases, we assume (as before stated) that under such act there must have been a preliminary examination for a criminal offense before a committing magistrate, and a commitment or holding to bail to answer therefor, before an information could lawfully be filed.
It is not essential, as claimed by the learned counsel for the defendant, that there shall be a formal adjudication by the magistrate that the offense has been committed and that there is probable cause to believe the accused guilty thereof. The statute does not so require. E. S., ch. 176, sec. 19 (Tay. Stats., 1920, § 19). It simply directs the magistrate to hold the accused to bail or commit him, when it shall be made to appear that an offense has been committed and there is probable cause to believe him guilty; and the fact that the magistrate holds to bail or commits is equivalent to such formal adjudication. It was substantially so held in Rindskopf v. The State, 34 Wis., 217, in which case certain remarks in the opinion in The State ex rel. Dilworth v. Braun, 31 id., 600, relied upon as asserting a different doctrine, are qualified or explained. These were cases under the bastardy act; but so far as the necessity of a formal adjudication is concerned, the doctrine of the Rindskopf case is applicable to this or any other criminal case.
It may further be assumed that, under the act of 1871, the district attorney could only file an information for the offense for which the accused was committed or held to bail, and that if he exhibited an information for another offense, such information would, on a proper proceeding, be adjudged invalid.
*574But tbe act of 1871 bas been modified in an important particular, and the powers oE the district attorney in respect to the filing of informations greatly enlarged, by subsequent legislation. Oh. 190, Laws of 1875, authorizes the district attorney, after an examination for a criminal offense which results in a commitment of the accused or in holding him to bail, “ to file an information setting forth the crime committed according to the facts ascertained on such examination and from the written testimony taken thereon, whether it be the same offense charged in the complaint on which the examination was had or not.”
Manifestly, under this statute, if the accused has had a preliminary examination before a committing magistrate, and has been committed or held to bail by such magistrate, the district attorney may exhibit an information against the accused, and bring him to trial, for any criminal offense which the testimony taken on the examination shows that he has committed. And we think the district attorney is not bound by the opinion or even the adjudication of the magistrate upon the testimony, as to what crime has been committed by the accused. ! The complaint (as in the present case) may be for a misdemeanor, and the magistrate may find that the accused is guilty of a misdemeanor only; yet, if the testimony on the examination shows that he is guilty of a felony, the district attorney may lawfully file an information for a felony. The rule would be the same were the conditions reversed. If the complaint and finding were for a felony, and the testimony showed that the accused was guilty of a misdemeanor only, the district attorney would be justified in filing an information for the misdemeanor and in refusing to file one for the felony. In the latter contingency, however, it would probably be the duty of the district attorney to file with the clerk of the court a statement of his reasons for such refusal, as required in the act of 1871, sec. 6.
A remark may here be made concerning the amount of proof *575necessary to authorize the district attorney to file an information for an offense other than that charged in the complaint. "We think the rule of the statute by which committing magistrates are governed (R. S., ch. 176, sec. 19), should be applied. That is to say, the testimony should show that the offense charged in the information has been committed, and that there is probable cause to believe the accused guilty thereof.
In the present case, the testimony on the examination was taken down very imperfectly, yet we think it shows that the offense charged in the information was committed, and that there is probable cause to believe the defendant guilty thereof. It follows that the information was properly filed.
We might here dismiss the.exception under consideration; but there are questions of practice or procedure involved, which ought not to be passed over without remark.
We have thus far considered the case upon the hypotheses that the district attorney cannot lawfully file an information for a criminal offense, except in case of a fugitive from justice, unless the accused has been examined for some criminal offense, and committed or held to bail by the examining magistrate; and that the examination returned with the l’ecord in the present case is the only basis for the information.
Whenever the question shall be fairly presented for determination, very probably it will be held that the district attorney cannot lawfully file an information for a criminal offense without a preliminary examination or a waiver thereof, and the holding to bail or commitment of the accused, except in the case of a fugitive from justice. We do not now perceive howany different rule can prevail under the statute. Laws of 1871, ch. 137, sec. 7 (Tay. Stats., 1930, § 22). Assuming the law to be as here indicated, how shall the fact be made to appear that there has been no preliminary examination? In what manner may the defendant proceed to avoid an unauthor ized information exhibited against him?
*576In the case of Peterson v. The State (as yet unreported), * we had occasion to consider these questions to some extent, and our views as to the proper procedure in such cases are indicated in the following extract from the opinion: “If such examination was essential in this case before the information could properly be filed (a point we do not here decide), the fact that there had been such an examination need not be stated in the information or shown affirmatively by the prosecution. The want of an examination is matter in defense or abatement, to be established by the plaintiff in error.”
It seems to us that the better practice in such cases is for the defendant to plead the want of an examination in abatement of the information, before pleading to the merits. The district attorney may then take issue on the plea, and the fact can be determined by proofs. The burden of proving his plea is upon the defendant; and his own testimony that he has not had a preliminary examination, or competent proof that, having been 'examined, he was not committed or held to bail, will be sufficient prima facie to prove his plea, and to cast upon the prosecution the burden of showing to the: contrary. "We do not say that there is no other way in which the want of a preliminary examination may be taken advantage of; we only express the Opinion that the practice here indicated is the more regular and orderly, and best accords with the procedure upon indictments at common law and under the former practice.
In this case, the defendant did not prove that he had not been subjected to a preliminary examination and held to bail or committed for the precise offense charged in the information. In the absence of such proof, all essential preliminary proceedings must be presumed; and such presumption is not *577rebutted by the mere fact that the accused had been on some occasion examined for another offense. Hence, if the law of 1875 had never been enacted, we should still be unable to say from this record that the defendant had not had a preliminary examination for the offense charged in the information, and had not been committed or held to bail to answer therefor. Peterson v. The State, supra.
We have said more on the exception under consideration than was absolutely necessary to the determination of the questions involved therein, for the reason that the legislation based upon the amendment to the constitution adopted in 1870 has introduced many new features in criminal procedure in this state, and we felt that some discussion of questions which have been argued in this court, but not definitely determined, might be of some service to the bench and bar of the state.
II. The next exception to be considered is to the ruling of the court at the commencement of the trial, refusing to require the district attorney to elect on which count of the information he would proceed.
The court had power to require the district attorney to make such election. But this is a matter resting in the discretion of the court, and a refusal to compel such election cannot in all cases be assigned as error. It is only in cases where such refusal is manifestly an improper exercise of discretion, that the ruling can be reviewed in the appellate or supervisory court. It is said in State v. Gummer, 22 Wis., 441, that “ the court will only listen to the request to compel the prosecution to elect in felonies, when they can see that the charges are actually distinct, and may confound the prisoner or distract the attention of the jury.” To the same effect is the case of Miller v. The State, 25 id., 384. The rule of these cases is abundantly sustained by the authorities.
We are quite unable to perceive how the refusal by the court to compel the district attorney to elect could possibly *578confound tbe defendant in bis defense or distract the attention of the jury. The testimony was all directed to the point that the defendant had fraudulently converted to his own use the machines mentioned in the first count of the informa bion, and all of it would have been admissible had the information contained no other count. Both counts were evidently predicated upon the same fraudulent acts of the defendant, to wit, the conversion of certain property of the prosecutors, or of the proceeds of such property. It might have been uncertain whether the actual conversion was of the property or proceeds, and it was entirely competent for the district attorney to insert in the information a count for each, to meet the possible contingencies of the proofs. Miller v. The State, supra. It seems to us impossible that the defendant could have been prejudiced by the refusal of the court to compel an election. ITence the exception is not well taken.
III. Several exceptions were taken to the charge given to the jury by the learned circuit judge, and to his refusal to give certain instructions proposed on behalf of the defendant. It is essential to a correct understanding of these exceptions, that a brief statement be made of the evidence given and the facts proved on the trial.
In January, 1875, a contract in writing was entered into by and between the firm of Van Brunt, Barber & Co., of the one part, and the defendant of the other part, by which the firm appointed the defendant its agent to sell its seeders on the terms and conditions and under the restrictions therein specified. The defendant also thereby accepted such agency, and bound himself to fulfill, observe and keep such terms, restrictions and conditions. This contract, in all essential particulars, is like the contract considered in The Williams Mower & Reaper Co. v. Raynor, 38 Wis., 119, where it was held that the party receiving the property under it was merely the agent or bailee of the other party to sell it, the title remaining *579in such other party, and the agent was held liable in tort for a conversion of the property. (See pp. 123-9.)
A large number of seeders were shipped by Yan Brunt, Barber & Co. to the defendant pursuant to the contract, some of which were sold by the defendant and accounted for, and others were returned to the firm. One Myers had become surety for defendant on a note which had been sued and prosecuted to judgment and execution against both, and the property of Myers had been seized on the execution. The defendant, being pressed to pay this debt, after some hesitation, sold to Myers three of the seeders received by him under the contract with Yan Brunt, Barber & Co., for the purpose of getting money from Myers with which to pay such execution. Myers thereupon paid him $130 in cash, under an agreement by the defendant to pay the judgment against them with the money, which agreement the defendant at once performed. The defendant stipulated with Myers that he might purchase back the seeders by repaying the $130, and tried to stipulate (but without success) that Myers should not remove the seeders. Myers took and held possession of the seeders. These transactions were without the consent or knowledge of Yan Brunt, Barber & Co., and the defendant has never accounted to them for the seeders sold to Myers. These are the seeders described in the information.
The foregoing facts are proved by the uncontroverted evidence, and are absolute verities in the case. That they show a fraudulent conversion by the defendant to his own use of the property described in the information, cannot be doubted. And it is equally clear that such property came to the possession of the defendant, and was under his care, by virtue of his employment as agent of the owners for the sale thereof. Moreover, there is no room in the case for the theory that the defendant supposed he had the right, under his contract with the owners, to convert the property to his own use, *580and he cannot urge in justification of his conduct that he construed the contract as giving him the right, and hence, converted the property in good faith. lie knew that he held the property as agent for the owners by virtue of his employment as such, and he converted it to his own use without the consent of the owners, and, as he well knew, in violation of his duty. There is nothing ill the evidence that tends to show that he acted innocently; nothing which enables us to say that perhaps he did not understand the nature of his acts, and may not have intended to commit a crime. We are compelled to believe that he converted the property to his own use with full knowledge of the quality of the act and the possible consequences.
Neither does the fact (if it be a fact) that the defendant believed, when he converted the seeders to his own use, that he would be able to pay the owners for them when required to account for them, and intended to do so, remove from the act of conversion its fraudulent and criminal character. The fraud and crime inhere in the act, and were not eliminated therefrom by any mere mental process, however amiable or virtuous it may have been.
The instructions given and refused must, of course, be considered in the light of the evidence and of the undisputed facts in the case; and thus considered, we fail to find any error in that behalf of which the defendant can justly complain. Indeed, we think the jury were, in some particulars, instructed more favorably to him than the facts of the case warranted.
The proposed instructions refused, and the instructions given, upon which the exceptions are predicated, are as, follows :
The court refused to charge, “ If you find that the defendant so construed the written contract that he honestly supposed that he had the right to sell the machines and use the proceeds thereof and afterwards account to the company, and that *581in the transaction in question he acted under that impression and in good faith, you should not find him guilty.
“ If you find from the evidence that at the time of making the bill of sale the defendant intended and expected to be able to pay for the same to the company, when his general settlement should be made, and that he acted in good faith and with no criminal intent, you should not find him guilty.”
The following instructions were given:
“ It is not enough to constitute the offense charged, that the defendant was the agent of the company, and that he converted the property to his own use; but the evidence must show that the property was fraudulently converted to his own use, or converted with the intent to embezzle.
“ If you entertain any reasonable doubt as to whether the defendant intended to defraud the company, he is entitled to the benefit of the doubt.
“Under the written contract, which has been read in evidence, and which it is the duty of the judge to construe, the defendant was, at the time of the alleged embezzlement, the agent of Yan Brunt, Barber & Co. for the sale of the machines mentioned in the contract, and for receiving,and passing over the consideration, whether in notes or money, to the said company.
“ If at that time, or before it, he had received machines under the contract and held them for sale, he was bound by his contract to sell them according to the terms of such contract for money or notes which were to be the property of said company.
“ It is for you to find whether or not he had received and had on hand, at the time of the alleged embezzlement, the machines in question. If you find he had, and should find that he sold any of them for the purpose of paying an indebtedness of his own, or pledged or turned them out as security for the purpose of raising money to pay his own indebtedness, without the consent of his principals, it was an unauthorized *582and fraudulent use of them, or an embezzlement and fraudulent conversion of. such as were so used to his own use. And if you find that he did so while the property was in his possession, he is guilty as charged in the first count of the information.
“ It would not relieve him from guilt if he intended and expected, at the time of doing so, to pay his principal for them with other money or property, or to repurchase or redeem them of the party to whom they were sold or mortgaged, or to repay the money to the party to whom they were turned out or pledged as security.”
It is apparent from an examination of these instructions, that the rulings of the court, considered with reference to the facts in the case, are in harmony with the views above expressed, and that the exceptions to such rulings cannot be sustained.
IY. The court refused the following instruction: “The evidence shows that the defendant was not such an agent of the company as is intended by the statute under which this charge is made. I therefore charge you that there is no evidence sufficient to convict the defendant.”
The instruction was evidently drawn with reference to the decisions of the supreme court of Massachusetts in Commonwealth v. Stearns, 2 Met., 343, and in Comm. v. Lilley, 11 id., 64, upon a statute like ours. In the first of these cases it was held, that “ an auctioneer who receives money on the sale of his employer’s goods, and does not pay it over, but misapplies it, is not such an agent or servant as is intended by the statute.” The ground of this decision is, that the money so received is the money of the auctioneer, and not of the employer; and the court lay stress upon the fact that the auctioneer was not charged Iwith any misappropriation or unlawful conversion of the specific property entrusted to him. In Comm. v. Libbey, the indictment was against a person employed to collect bills for the *583proprietors of a newspaper, charging that the accused embezzled and fraudulently converted to Ms own use the moneys collected by him for such proprietors by virtue of his employment. The court drew a distinction between a special agency, where the right of property and the possession remain in the principals, and the cases of commission merchants, auctioneers and attorneys authorized to collect demands for others; holding that an indictment would lie for a fraudulent conversion of the property in the former case, but not in the latter cases for a fraudulent conversion of the moneys collected.
In the present case the agency was special, and, as above stated, the right of property continued in the principals. Hence, within the rule of the Massachusetts cases, a fraudulent conversion of the property by the agent is a criminal offense under the statute. "We thinlc the proposed instruction was properly refused.
Y. It was argued at the bar by the learned counsel for the defendant, that the law of 1873, ch. 85, supersedes, in a case like this, the statute under which the information was drawn (R. S., ch. 165, sec. 27), and reduces the offense charged from felony to a mere misdemeanor, and hence, that the greatest punishment that can be inflicted is that prescribed in the act of 1873.
It is manifest that the exceptions do not and cannot raise this question, for the circuit court will give judgment as the law requires, whether it be for the less or the greater penalty, and we can only determine the question when called upon to review the judgment.
It is believed that the foregoing observations dispose of all the exceptions; and it results therefrom that the exceptions must be overruled, and the cause remanded for further proceedings according to law.
By the Court. — So ordered.