79 Neb. 504 | Neb. | 1907
Lead Opinion
This case is before us on the state’s exceptions taken and prosecuted under the provisions of sections 483, 515 and 516 of the criminal code. It appears that the defendant, John H. Sparks, was tried in the district court for Gage county on an information charging him with obtaining a warrant from said county of the value of 1539.04, by means, of certain false pretenses. The substance of the information was that the defendant, on the 14th day of July, 1904, did falsely, knowingly and unlawfully pretend that he had built a certain bridge in said
The record discloses that the state introduced competent evidence which showed that on July 14, 1904, defendant filed claim No. 11,520 with the county clerk of Gage county for $539.04 for building a bridge between sections 31 and 32 in Island Grove township in said county; that said claim was allowed by the county board, and paid to the defendant by Avarrant No. 329. The evidence also shows that on December 3, 1903, claim No. 10,808 for $512.45 for building the same bridge at the same place was filed with the county board; that said claim Avas alloAved and paid by warrant No. 129. It appears, hoAvever, by the state’s evidence that the last mentioned claim Avas not in the handwriting of the defendant, but was made out and filed by one E. V. Martindale, who Avas employed in the defendant’s office at St. Joseph, Missouri. The evidence further shoAArs that the bridge in question AA-as first built between sections 27 and 34, in said township, and was afterAvards removed by the defendant, at the county’s request, to its present location between sections 31 and 32; that on February 12, 1903, defendant
The evidence further shows that Martindale, not being aware of the agreement of the defendant not to file the claim for the construction of the bridge in question until after the next tax levy, made out the bill known as claim No. 10,808 for $512.45 in his own handwriting; that he verified the same, signed the name of the defendant thereto, and filed it with the county board on December 3, 1903; that the claim was paid, and the proceeds thereof, with other items, were sent to St. Joseph, where the defendant had his principal office, and that the defendant was not advised that it was a payment for building the bridge in question at its present location. It further appears from the evidence that on July 14, 1904, and after the tax levy
The defendant on his part introduced competent and convincing evidence, which showed that about the 18th day of June, 1906, supervisor Campbell of Gage county, wrote to the defendant that he thought the records showed that defendant had twice received pay for building the bridge in question; that defendant answered the letter at once, saying that he would come to Gage county, and they would look the matter up; that he did so, and it was then for the first time ascertained by the defendant that such was the fact; that defendant thereafter went before the county board and asked to be allowed to refund the sum of $539.04, with interest thereon at the rate of 7 per cent, per annum. I-Iis request was granted, and the money was thereupon refunded. The record further shows that, when the prosecuting attorney ascertained the fact, which was during the introduction of the state’s evidence in chief, that the defendant had not made out and filed claim No. 10,808, he sought to show the knowledge and intent of the defendant, and his guilt of the particular crime charged in the information, by offering to prove that the defendant had at other times, and in other cases, filed claims against the county for building and repairing bridges, which had been allowed and paid in the same
It is strenuously urged by the state that the district court erred in refusing to receive the testimony in question; while counsel appointed to defend the rulings of the trial court invoke the general tule that the state cannot prove against a defendant any crim'e not alleged in the information, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged. As was said in People v. Molineux, 168 N. Y. 264. “This rule, so universally recognized and so firmly established in all English-speaking lands, is- rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta. It is the product of that same humane and enlightened public spirit which; speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt. This rule, and the reasons upon which it rests, are so familiar to every student of our law that they need be referred to for no other purpose than to point out the exceptions thereto.”
It is further urged by the defendant that this court is committed to the rule that evidence of the kind in question will not, under any circumstances, be received against a defendant on trial for the crime of obtaining money under false pretenses. While there are several cases decided by this court in which it has been held that such evidence should have been excluded in prosecutions of this kind, yet it seems to us that the ordinary or usual exceptions to this general rule are recognized in all of them. In Cowan v. State, 22 Neb. 519, it was held: “Except in cases where it is necessary to show guilty knowledge, it is not admissible to prove that at another time and place the
So it will be seen by a careful examination of all of our decisions on this question, that Ave have always recognized certain well-known exceptions to the general rule contended for by the defendant. It is usually the case, hoAVever, that, in prosecutions for obtaining money or property under false pretenses the facts, when clearly proved, speak for themselves, and further proof of guilty knowledge or intent is unnecessary. In such case evidence that the accused at other times and places, and by acts independent of the transaction complained Of, has committed like offenses is unnecessary, and should not be received to aid in establishing his guilt; but, where the facts are of such a nature that the prosecution is required to prove guilty knowledge and intent on the part of the accused in doing the act complained of by circumstantial evidence, proof of the commission of like crimes may be resorted to for that purpose.
This brings us to the question, does the case at bar fall
It would seem that under the rule above stated the offers of proof in this case should have been received because they are evidently within the exception to the general rule; and the state’s exceptions are therefore
Sustained.
Rehearing
The defendant upon his motion for rehearing in this case has furnished us with an interesting brief. He insists that all of the authorities upon the point determined in the opinion apply the principle that other similar transac
We think, however, that the better rule is that the fact that the claim had already been paid and that the defendant had received the benefit of such payment furnishes some evidence that he knew of the prior payment; and, as was said in an old English case, quoted with approval by the supreme court of Michigan, in People v. Hoffmann, 142 Mich. 531: “It seems clear upon principle that when
Motion for rehearing is
Overruled.