43 Fla. 211 | Fla. | 1901
Edgar H. King, the plaintiff in error, on the xoth day of April, 1900, in the Circuit Court for Gadsden
In witness whereof said parties have hereunto set their hands and seals this the day and year first above written as the date hereof.
Witness: Judge Trogden. Seal.
E. H. King, Internal ■ Seal.
Revenue Stamp. Seal
50c. Seal.
.............. For value received I hereby assign, transfer, set over and convey unto Gulf Naval Store Company, its successors and assigns all my right, title, interest and estate in and to the within lease and all benefit to be derived therefrom. This Oct. day of 21., A. D. 9 —• W. B. McMillan. Seal.
Signed, sealed and delivered in the presence of J. D. McDougald.
with intent then and there thereby to injure and defraud the Gulf Naval Stores Company, a Florida corporation, and the Aspalaga Naval Stores Company, a company composed of W. B. Roddenberry, W. J. Singletary and J. D. Russ. Against the form of the statute in such case made and provided to the evil example of all others in the like case offending, and against the peace and dignity of the State of Florida. W. H. Ellis,
Acting State’s Attorney for the Second Judicial Circuit of the State of Florida, Prosecuting for said State.” Upon this indictment the plaintiff in error was alone tried and convicted in April, 1900, and sentenced to two years’ confinement in the penitentiary, and from such sentence takes writ of error.
The first assignment of error is that the court erred in denying the defendant’s 'motion to quash the indictment. This motion was upon the following grounds: 1st. Because said indictment is vague, indefinite and uncertain, and charges no offence against the laws of the State of Florida.
2. Because said indictment merely alleges a con
3. Because said indictment fails to allege that if said instrument, had been true and genuine, that the same would be of any binding force or effect upon any person whomsoever.
4. Because said indictment alleges that the instrument alleged to be forged was of no legal validity whatever.
5. Because said indictment does not allege that the lands described in said instrument alleged to be forged are situated in Gadsden county, Florida, or that the same are situated in- the State of Florida.
6. Because said indictment does not allege that the property mentioned and described in said instrument alleged to be forged was at the time of sucty alleged forgery, or at any time prior or subsequent thereto, then and there the property of Judge Trogden, the person whose name is purported to be signed to such instrument.
7. Because such indictment does not allege that the instrument alleged to have been forged by this defendant or his co-defendant, was so executed without authority of law, or without the knowledge and consent or direction of the said Judge Trogden whose name appears thereto as his act and deed.
8. Because said indictment shows upon the face thereof that the instrument alleged to have been forged is an illegal instrument and of no legal validity. . That said indictment further shows that said instrument alleged to be forged is not in compliance with the statutes in such cases made and provided as to leases of lands for a term of years of more than two years, and that such instrument
The first of these contentions is untenable. The quoted language from the indictment does not mean to convey the idea that the defendants falsely made and forged a paper that was already in existence and that was itself a false and forged document, but its meaning is that they did falsely make and forge the instrument as their own original creation and that when so made by them it was a false, forged and counterfeit writing.. The form of the allegation used is open to the criticism of being tautologous, but does not for that reason vitiate the indictmtent. Duffin v. People, 107 Ill. 113, S. C. 47 Am. Rep. 431; People v. Kingsley, 2 Cowen 522, S. C. 14 Am. Dec. 520; Rex. v. Goate, 1 Ld. Raymond, 737.
As to the second ground of the contention, it is undoubtedly true that in order to be the subject of forgery the instrument forged must be upon its face, were it genuine, of some apparent legal efficacy for injury to another, or as Mr. Wharton expresses it: “Should be one which
The second assignment of error is the ruling of the court, sua sponte, striking out a plea in abatement filed by the defendant. This plea alleges in substance that W. H. Ellis, who, as Acting State Attorney, appointed as such by the court in the place of the regular State Attorney who was sick and absent from the court, drew and signed the indictment, and who alone advised the grand jury in the matter of considering and finding the bill, is the employed and retained legal counsel of the prosecutors, the Aspalaga Naval Stores Company, a firm composed of W. B. Roddenberry, W. J. Singletary and J. D. Russ, and as such privately retained counsel appeared on behalf of the said prosecutors and prosecuted the defendant at £he preliminary trial for such offence; and was and is their private counsel in a civil suit pending in their favor against the defendant involving the same matters involved in this prosecution, and is their retained and employed counsel in the matter of this prosecution. There was no error in this ruling. Section 1354 Revised Statutes authorizes the Circuit Judge to ■ appoint a prosecuting attorney from among the members of the bar, whenever the official State Attorney-shall be absent from any regular or special term of court; or, if present, whenever he shall from any cause be unable to perform the duties of his office. This statute also requires
The third assignment of error is the denial of the defendant’s motion for a continuance of the cause. This motion was predicated on the same grounds substantially set up in the plea in abatement already discussed, vis: that the State was represented in the prosecution only by tlie Acting State Attorney, W. H. Ellis, and by J. M. Calhoun, both of whom were the privately retained counsel for the prosecuting witnesses. For the reasons already mentioned in the discussion of the plea in abatement, there was no error in this ruling, even were it admitted that a really existent disqualification of the State’s representative in a prosecution for crime could ever, under an}?- circumstances, furnish ground to the defendant to claim the right to a continuance, which we think is a very doubtful proposition particularly when, as has been already seen, both the statute and the inherent authority of the court furnish ample resources from which to supply a prosecuting representative for the State in any case of emergency.
On the cross-examination of the State’s witness, W. B. Roddenberry, the defendant asked the following question : “Did not Edgar King inform you or your firm that the lease in question alleged to' be forged in the indictment, was only a Copy, and that the genuine lease had been for
The fifth, sixth, seventh and eighth assignments of error are predicated upon the exclusion by the court of the four following questions propounded by the defendant to his own witness, one S. V. Baker: 1st. What state
The ninth assignment of error is the overruling of the defendant’s motion to declare a mistrial and to discharge the jury. This motion was presented at the close of the evidence in the case and was predicated upon the proofs in the case going to establish the fact that W. H. Ellis, the sworn Acting State Attorney who conducted the prosecution was the .privately retained counsel of the prosecutors, the Aspalaga Naval Stores Company, in the prosecution of the case; and because J. M'. Calhoun, another attorney who assisted him in the prosecution was also the privately retained counsel of said company in a pending civil suit, brbught by said company against de
The tenth assignment of error is the giving by the court of the following charge: “In order to establish thefendant’s guilt it is necessary for the State to.prove beyond a reasonable doubt that the instrument described in the indictment is a writing obligatory; that it was not signed by Judge ^frogden or any one for him with-his consent, and not afterwards ratified by him, and that the defendant made all of it, or a distinct part of it, and thereby intended to defraud the Gulf Naval Stores Company or the Aspalaga Naval Stores Company.” The contention made here is that this charge is applicable to a case where there is a principal and an accessory to-- the same crime, and that while it states a correct proposition of law, it is not applicable to the facts of the case. This •contention can not be sustained. According to the evidence more than half of the forged instrument was in the handwriting of the defendant, and the balance in the handwriting of McMillan or some other person. That portion of the body of the paper in defendant’s handwriting is a very material part of the document, and if he wrote it with the intent charged in the indictment, and with the intention that McMillan or some one else should complete the document, and it was so- completed, he would be a 'principal in the forgery. It is true the defendant’s testimony tends to show that he wrote what he did innocently and with no intent to defraud and- with no knowledge that McMillan or another would complete the paper and., sign Trogden’s name to
The defendant requested the court to give ten special instructions containing distinct propositions of law, three of which were given and seven refused. The exception taken to the refusal to give the seven was general, and it is settled here that where a general exception is taken to the refusal to give two or more separate instructions containing distinct propositions of law, • the exception thus taken is not available if any one of such charges was properly refused. McCoggle v. State, 41 Fla. 525, 26 South. Rep. 734. The eighth request refused was erroneous in that it required the jury to find an intent to defraud both the Gulf Naval Stores Company and the Aspalaga Naval Stores Company, in order to convict the defendant, while the law is that if a forgery was committed with intent to defraud either of the parties named the offence would be complete. For this reason it was properly refused, and as one of the requests was properly refused, it becomes unnecessary that we examine the others the refusal to give which is assigned as error.
The judgment is reversed and a new trial awarded.