Sperbeck v. People

Mr. Presiding Justice Baker

delivered the opinion of the court.

The statute on which the charge in this case is based provides that: “Whoever, with intent to cheat or defraud another, designedly by color of any false token or writing, or by any false pretense, obtains the signature of any person to any written instrument or obtains from any person any money, personal property or other valuable thing, shall be fined in any sum not exceeding $2,000 and imprisoned not exceeding one year, and shall be sentenced to restore the property so fraudulently obtained, if it can be restored.”

The information alleges that the defendant, “did unlawfully and falsely represent and pretend Albert Schetter that he would give him employment as a machinist in the Union Pacific Railroad shops, on payment of ten dollars; he also further stated that he as an employment agent was authorized by the said railroad to hire men. And so affiant relying on the said fake statement and being deceived thereby was induced, etc., to-pay over, etc.” This is an averment that the defendant made two distinct statements or representations to the prosecutor: the first that he would give the prosecutor, “employment as a machinist in the Union Pacific Railroad shops on the payment of ten dollars”; the second, that “he, as an enrployment agent was authorized by the said railroad to hire men.” The word “falsely” in the averment applies to the first statement only, and not to the second. If it had been intended to' make the word “falsely” apply to both statements, at the conclusion of the first statement after the word dollars, the word “and” would have been used instead of the words “he also stated.” This view finds confirmation in the language of the next clause of the information: “And so affiant relying upon the said falce statement and being deceived thereby, etc.”

Theives’ slang has no proper place in an information, but whatever may be the meaning of the slang word “fake” as used in the information, the word statement is singular, and but one statement is by the information styled a “fake statement.”

To establish the guilt of the defendant, the evidence must prove beyond a reasonable doubt that the defendant represented or pretended to the prosecutor: “that he would give him employment as a machinist in the Union Pacific shops.” We should hesitate to hold that the testimony of the prosecutor, in chief, if it stood alone, was sufficient to sustain the allegation of the information. He testified that he asked defendant, “whether he could give me employment as a machinist in the railroad shops,” and that defendant said that upon certain conditions, “he would give me employment at two dollars per day at Cheyenne or Granger, Wyoming.” It is, to say the least, doubtful whether the statement, that the prosecutor testified that the defendant made, could in any event be held a statement or representation by the defendant that he would give the prosecutor employment as a machinist, or anything more than a statement or representation that he would give him employment at a certain place, at certain wages, without specifying any particular employment.

But the prosecution was bound to prove not only a representation by the defendant that he would give the prosecutor employment as a machinist, but that he would give him such employment, “in the Union Pacific Railroad shops.” Neither in his testimony in chief nor in his cross examination did the prosecutor testify that the name of the Union Pacific Railroad Company was so much as mentioned in any conversation between him and the defendant. On his cross-examination he testified as follows:

“Q. What representations did Mr. Sperbeck make to you ? A. He told me he was hiring a lot of people to go out west and work on railroads. * * *

Q. What representations did Mr. Sperbeck make to you with reference to employment after you got out there? A. He told me that he could place me either in Cheyenne or Granger, Wyoming, at two dollars per day, that he had sent a lot of people out there and there would he no trouble at all.” This testimony, taken in connection with his testimony in chief, clearly fails to sustain the allegation that defendant represented to the prosecutor, “that he would give him employment as a machinist in the Union Pacific Railroad shops.”

The defendant testified that he did not state to the prosecutor that he could give him employment at Cheyenne or Granger, but independent of this testimony and considering only the testimony of the prosecutor, the evidence does not sustain the information, and the judgment must therefore be reversed and the cause remanded.

Reversed and remanded.