State v. Sparks
| Decision Date | 12 July 1907 |
| Docket Number | 15,136 |
| Citation | 113 N.W. 154,79 Neb. 504 |
| Parties | STATE OF NEBRASKA v. JOHN H. SPARKS. [*] |
| Court | Nebraska Supreme Court |
ERROR to the district court for Gage county: WILLIAM H. KELLIGAR JUDGE. Exceptions sustained.
Exceptions SUSTAINED.
M. W Terry, L. M. Pemberton and S.D. Killen, for plaintiff in error.
Fulton Jack, contra.
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 $ 539.04, 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 county, and had a just and true claim against Gage county for the sum of $ 539.04 for building said bridge, which was due and wholly unpaid; that he made a charge and claim against said county for said sum for building said bridge, and, having duly verified it, filed it with the county clerk, and thereby pretended that he had built said bridge; that said sum was due and owing him therefor, and that he procured the county to issue him a warrant for said sum; that said representations were false; that he had not built a bridge as represented, which had not been paid for; that he did not have a just and true claim against said county for building said bridge, and that there was not due and owing him from said county for building said bridge said sum of $ 539.04, or any other sum. The jury found the defendant not guilty, and from the rulings of the trial court, excluding certain evidence offered by the prosecuting attorney, the exceptions herein are prosecuted.
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 warrant 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 was allowed and paid by warrant No. 129. It appears, however, by the state's evidence that the last mentioned claim was not in the handwriting of the defendant, but was made out and filed by one E. V. Martindale, who was employed in the defendant's office at St. Joseph, Missouri. The evidence further shows that the bridge in question was first built between sections 27 and 34, in said township, and was afterwards removed by the defendant, at the county's request, to its present location between sections 31 and 32; that on February 12, 1903, defendant filed claim No. 9,931 against Gage county for $ 539.61 for building said bridge at its first location; that said claim was allowed by the county board for the sum of $ 523.84, and paid by warrant No. 108. It appears, however, that prior to the removal of the bridge from the place where it was first built to its present location the chairman of the board of county commissioners, acting for and on behalf of the county, entered into an agreement with the defendant, by which he was to build for said county a new steel bridge of 42 feet span between sections 27 and 34, in Island Grove township, as a substitute for the one in question, which was too small for that place. It also appears that it was believed the bridge fund was, or might be exhausted, or was insufficient to pay for the new bridge, and so it was agreed that the defendant should file a claim against the county for the difference between the value of the new 42 feet bridge and the one in question, and that the defendant should take the old bridge in payment for the remainder of the cost of constructing the new one. It was further agreed that he should remove the bridge which had thus been turned over to him to its present location, and after it was rebuilt and in proper condition for use upon the highway, and after the next tax levy, defendant should file his claim therefor, which the county would then pay.
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 for that year, the defendant called the attention of one Austin, who was his foreman in Gage county, to the fact that no bill had been filed for removing and rebuilding the bridge in question. And thereupon the defendant ascertained the amount of said claim from Austin, and, being then at Beatrice, made out claim No. 11,520 for $ 539.04, and verified and filed it with the county board for payment, as shown by the state's evidence. Martindale testified positively that he in no manner, and at no time, informed the defendant that he had previously filed claim No. 10,808 for the construction of the bridge in question, and the defendant testified as positively that he had no knowledge that such claim had been presented when he filed the one made out and verified by him on the 14th day of July, 1904.
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. His 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...
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