74 Fla. 234 | Fla. | 1917
The plaintiff in error, who held the official position of County Judge of Bay County from January, 1915, to September 15th, 1916, was indicted for embezzlement of county funds.
The indictment was presented in March, 1917, and contained three counts: one charging that between November 20th, 1915, and March 10th, 1916, the plaintiff in error aS County Judge of Bay County received and took into his possession certain moneys belonging to the county amounting to twenty dollars, and feloniously embezzled and converted the same to his own use; the
The plaintiff in error wás convicted upon the second count of the indictment and sentenced to three years’ imprisonment in the State prison. From this conviction and sentence he comes to this court upon writ of error.
The section of the General Statutes under which this prosecution was held is section 3317, and so far as it applies to this case is as follows: “Embezzlement by
State, County or Municipal Officer — Any State, County or Municipal Officer who shall:
“1. Convert to his own use, or who shall
“2. Secrete with the intent to convert to his own use, or who shall
“3. Withhold with the intent to convert to his own use,
“(a) Any money, property or effects belonging to or in the possession of the State, county, city or town whose duty requires him to receive said public money, property or effects; or
“(b) Any money, property or-effects of another, the duty of which officer requires him to receive said, money, property or effects shall in every such act be deemed guilty of an embezzlement of - the money, property or effects so converted, secreted or withheld, and shall be punished by imprisonment in the State prison not exceeding twenty years, and by a fine equal to the value of the money, property or effects’ so converted, secreted or withheld. The failure, neglect, omission or refusal of any such officer to pay over or deliver to any official or person-authorized -or having the right by law to
The indictment in each count charged that Middleton as County Judge received and took into his possession the money described which came into his possession by virtue of his office.
An attack was made upon the indictment by motion to quash, which was denied. This was followed by a motion to transfer the cause to the County Court of Bay County. Before these motions were made counsel for the defendant below moved the court for a bill of particulars, which motion was granted, and a bill of particulars furnished by the State Attorney. The bill of particulars as copied in the bill of exceptions is as follows:
“State of Florida,
“vs
“D. IC. Middleton.
“Now comes the State Attorney and for a bill of particulars says that the persons from whom the defendant received moneys were Hurley Patrick $1.00, J. C. Sims $1:00, Charlie Russ $1.00, M. Mayers $1.00, Rei Hogeboom $1.00, W. C. Vickery $3.00, and other persons unknown to the State Attorney the sum of $12.00, which said moAeys were collected and came into the hands of the defendant as the money belonging to the County of Bay, Florida, derived from the sale of hunting license for the season of 1915 and 1916, and that said money came into possession
“IBA A. HUTCHINSON,
“State Attorney.”
A motion was made to eliminate the following item: “And other persons unknown to the State Attorney the sum of $12.00,” upon the ground that it was vague, indefinite and uncertain, and did not apprise the defendant of the specific charge against him. This motion was also denied.
The overruling of the motions to quash the indictment, for a transfer of the cause to the County Court and for the elimination from the bill of particulars of the item above referred to, constitute the bases of the first, second and third assignments of error.
The motion to quash the indictment contains four grounds, which are in substance as follows: First, that neither count of the indictment charges any offense against the laws of Florida; second, that the laws of Florida do not require the County Judge to receive any public money belonging to the State; third, that the money alleged to have been withheld or embezzled by the defendant was derived from hunting licenses, and under the law belonged to the Public School Fund, and not to Bay County, and, fourth, that it appears from the indictment and bill of particulars that the Circuit Court has “no jurisdiction in the premises.” If the crime charged in the indictment was in the light of the bill of particulars cognizable by the county court and not by the Circuit Court, a motion to quash was not the remedy, because under our statute, Section 3894 General Statutes of Florida, 1906, the Clerk of the Circuit Court should have docketed the case on the trial docket of the county
The third and fourth grounds of the motion to -quash were not well taken. The first and second grounds of the motion may be considered together. They present the point that as the laws of Florida do not require the County Judge to receive any public money belonging to the State the indictment charged an impossible offense. Chapter 6969 Laws of Florida, 1915, entitled “An Act declaring the ownership of game and birds in the several counties of the State; to provide for the protection of same; providing open and closed seasons; providing for hunters’, licenses and for game wardens and repealing
It is further contended by counsel for the plaintiff in error that as Chapter 6969 Laws of 1915 is the only statute which makes it the duty of the County Judge to receive public money, and as that statute provides a penalty for its violation by any official, officer or warden who fails to perform an act enjoined upon him by the provisions of the game laws, that Section 3317 of the General Statutes of Florida, 1906, is superseded by the Act of 1915 in so far as the former might apply to the act of a
Section 38 of Chapter 6969 Laws of 1915, provides that “Any official, officer or warden who shall fail to perform an act, duty or obligation enjoined upon him by the provisions of the game laws of this State, shall be punished by a fine of not less than fifty dollars, nor more than two hundred.” Chapter 6534 Laws of 1913, entitled “An Act to protect game birds in the State of Florida,” and Chapter 6535 of 1913, entitled “An Act creating a department of game and fish of the State of Florida and creating the office of State Game and Fish Commissioner,” were repealed by Chapter 6969. Chapter 6535 required the County Judge to issue all hunting licenses and after paying the county game warden the fee allowed on each license and retaining the fee allowed to the County Judge, to pay the “balance of the money derived from the issuing of hunting licenses to the State Treasurer.” That act imposed upon the County Judge the duty of reporting to the State Game and Fish Commissioner on the first day of each month the number of licenses issued and the amount of money remitted to the State Treasurer. Section 18 of Chapter 6534 contains the same provisions as section 38 of Chapter 6969. The latter act imposes several duties and obligations upon the County Judges. They are required to receive applications' for “Resident County Licenses,” for “Non-Resident County Licenses and Non-Resident Hunters’ Licenses,” and to receive the money prescribed by statute therefor. He is required to issue the licenses to all persons complying with the provisions of the act; to keep a correct and complete record of all licenses issued under the act; to keep that record at all times in his office and open to the inspection of the
One statute does not repeal a prior statute by implication unless such is clearly the legislative intent. See Stewart v. DeLand-Lake Helen Special Road & Bridge Dist. in Volusia County, 71 Fla. 158, 71 South. Rep. 42; State ex rel. Gonzalez v. Palmes, 23 Fla. 620, 3 South. Rep. 171; Florida E. C. R. Co. v. Hazel, 43 Fla. 263, 31 South. Rep. 272; State v. Gadsden County, 63 Fla. 620. 58 South. Rep. 232.
The two statutes are not irreconcilable, they are no* repugnant to each other, they are not even in pari materia; there is no ambiguity in Section 38 of Chapter 6969 which requires a reference to any other statute to make clear. One statute deals with embezzlement by a county officer, the fraudulent appropriation to his own use of money belonging to another; the other statute deals with mere negligence or inattention to duty in the matter of paying over the funds on a particular day. The money may be in hand, there may have been no intention to convert.it to his own use, no withholding for that purpose; yet that would be no defense to the charge formulated under Chapter 6969 that the County Judge-failed to pay the money received from hunting licenses to the County Treasurer on the. first day of the month following the receipt of such money.
The motion to transfer the cause to the County Court is based upon the theory that the Act of-1915, Chapter 6969, superseded Section 3317 of the General Statutes of Florida, and that under the allegations of the indictment
From what has been said in discussing the motion to quash the indictment it follows that our view is in accord with the ruling of the. Circuit Judge in denying the motion to- transfer the cause. The first and second assignments of error we hold to be not well taken.
The motion to strike from the bill of particulars the following item: “And .other persons unknown to. the State Attorney the sum of $12:00,” was, we think, properly denied. - The purpose of a bill of particulars is to advise the defendant more-fully as to the nature and cause of the accusation against him, and that he may prepare his defense more readily than he could do with only general and sometimes indefinite allegations before him. The bill of particulars however is no part of the pleadings, and the indictment is neither strengthened nor weakened by it, although a bill of particulars may have the effect, as was said in Ex parte Clarkson, 72 Fla. 220, 72 South. Rep. 675, to narrow the indictment as to the time within which the acts alleged constituting the offense may be proved. The bill of particulars apprised the defendant of the source from whence the money came into the defendant’s hands and the time when he received it. This information was sufficient to enable him to prepare his defense, and it fully advised -him of the source from whence the money was received-by him. It is inconceivable how the defendant with this information could have been misled or in the slightest degree embarrassed in the preparation of his defense, especially when it is considered that he had the records, of his own office which the law required and prudence dictated -should be kept by;-him. The persons from- whom the money was
This brings us to the consideration of those assignments of error based upon the admission of certain evidence, and the overruling of the motion for a new trial. It is unnecessary to discuss the questions presented by the fourth, fifth, sixth and seventh assignments of error involving the correctness of the court’s rulings in admitting certain evidence, because we are of the opinion after carefully reading the evidence as presented by the bill of exceptions and an examination of the books of account kept by the County Treasurer that the verdict was unsup
The motion for a new trial should have been granted. The judgment of the court is, therefore, reversed.