45 Fla. 71 | Fla. | 1903
In September, 1902, plaintiff in error was tried and convicted in the Criminal Court óf Record of Hillsborough county, upon ail information oharginig embezzlement. . The second count of the information. upon which the- verdict ■ and judgment are based charged embezzlement of the* proceed»-'of-sixty-three- boxes of cigars in-ti «cea to defendant by one Louis Galvin. U-pori the tria. Gálvin testified that' he gave defendant the cigars to sell for him upon a commission of five per cent., and that upon demand for .the proceeds defendant admitted that he-had sold-the cigars and used all the-money derived therefroiii. The defendant admitted reeeivinig the cigars, but claimed that- he purchased them- from Galvin with the understanding that he was to pay for'them at a designated, tisie. The testimony of ¿be witness Galvin was delivered through an interpreter, it appearing that he spoke English very imperfectly. On cross-examination he was asked if he did not on the mo-rniing of the preliminary examination of the defendant state in the presence of H. D. Webster and Robert Lore that he had sold the cigars to defendant to he paid for at a specified time. The witness answered the question in the negative. He admitted havinig a conversation at the time and place' designated, but denied having made the statements inquired
In Commonwealth v. Vose, 157 Mass. 393, 32 N. E. Rep. 355, S. C. 17 L. R A. 813, it was held that where two parties Speaking different language and wiio- can not understand each -other] converse through'" an inte'rpx-etex-, the words- of tlie interpreter which are their necessary medium Of communication ai*e adopted by both and made a part'-o-f their convei-sation, as much as those which fall from their own lips- that the interpretation finder such
The second assignment of error is based upon exceptions to an instruction given by the court to the effect that the State was not required to prove absolute ownership in Louis Galvin of the cigars delivered to defendant, but that it wQnld be sufficient to prove simple possession on his part. We are not prepared to say that proof of “simple possession” of the property alleged to have been embezzled will in all cases be sufficient to sustain the allegation of ownership. Nor do we think it at all necessary that the alleged owner shall be proved to be the absolute owner of such property i,n order to warrant a conviction. If he has a qualified or special property in the goods embezzled, it will be sufficient. The ownership must be laid in the indictment as in an indictment for larceny (Grant v. State, 35 Fla. 581, 17 South. Rep. 225), and we perceive no reason why the proof of ownership in embezzlement should pot be sufficient if it would support an allegation of pwper.sjup in lapceny. The rulse in the
The ninth assignment of error is based upon the ruling permitting the folíowiing question to be propounded to the State witness Rosa Herrick: “What was he to get for selling the cigars?” The witness had testified that she was present when Galvin delivered cigars to defendant to sell for him and that defendant came back next da> and told Galvin he would go and get his money and bring it Saturday. The question objected to was then propounded. Several objections were interposed, .put the only one insisted upon in fhis court is that the question was improper because it had not first been shown by the testimony of the witness that she heard the entire conversation. The question was proper as against the objection urged. Williams v. Keyser, 11 Fla. 234.
Several other questions are presented by the assignments of error. They need not necessarily arise upon another trial, and we shall not therefore discuss them-.
It may be well' for the partiés to consider the sufficiency of the information, tested by the decision in Grant v. State, supra, before proceeding to trial a second time. It was there held that where an indictment alleges em-
. The judgment is reversed ,and a new trial granted.
