79 Fla. 772 | Fla. | 1920
The plaintiff in error was convicted in the Criminal Court of Record for Duval County upon an information charging him with the crime of embezzlement in three counts. He seeks here to reverse the judgment upon writ of error. „
The defendant moved for a bill of particulars as to each of the counts and that such bill should contain information as to whether the money alleged to have been received by the defendant was for license taxes, or poll taxes or taxes upon real or personal property, the names of the persons who paid the taxes, the date of payment, the amounts paid, the name of the person to whom paid, and the fund or funds to which the tax money so received should have been applied. The record shows that upon the day this application was made the.defendant pleaded to the information. His affidavit in support of the motion shows that the plea had been filed when the motion was made. The judge of the court made an order to the effect that in so far as a bill of particulars, which had been prepared and submitted, met the requirements of the motion the latter was granted; but denied in so far as the motion required information not con
The bill of particulars filed covered the tax rolls for the years 1916 and 1917. They showed in one item the total amount of collections on account of State taxes for the year 1916 and in one item the total collections on account of State taxes for the year 1917, and in many items for each year the payments made. According to the bill of particulars the payments on the roll for 1916 extended over a period from December 4, 1916, to September 7, 1918, and on the roll for 1917 the payments covered the period beginning November 7, 1917. For the year 1916 the deficit thus shown appeared to be $7,747.00, and for the year 1917, $20,051.25, making the total sum of $27,798.25 deficit on account of State tales upon the rolls for the two years, the amount charged in the first count of the information to have been embezzled of State funds.
As to the county monies alleged to have been embezzled the bill of particulars showed for ■ each year the total amount of collections on account of each fund and on separate sheets the amount of payments made by him, which upon the tax roll of 1916 covered a period from December 2nd, 1916, to August 19th, 1918, and' upon the tax roll of 1917 a period from November 5, 1917, to September 18, 1918. These deficits aggregated the total
In the case of Thomas v. State, 74 Fla. 200, 76 South. Rep. 780; we said that the right of a defendant to demand a bill of particulars and of the court to direct one independent of express statutory authority may be considered as settled in this State. See also Thalheim v. State, 38 Fla. 169, 20 South. Rep. 938; Brass v. State 45 Fla. 1, 34 South. Rep. 307; Mathis v. State, 45 Fla. 46, 34 South. Rep. 287; Ellis v. State, 74 Fla. 215, 76 South. Rep. 698. It is unnecessary to repeat here the court’s reasoning by which it arrived at that conclusion. Mr. Justice LIDDON, in speaking for the court in the Thalheim case, quoted from the case of State v. Rowe, 43 Vt. 265, in which the court said: “That the rule was made with the view of satisfying the provision of the 10th Article of the Bill of Rights of our State Constitution, which gives the accused in all prosecutions for criminal offenses a right ‘to demand the cause and nature of his accusation.’ ” Any other view of the law, this court said, would be in conflict with that section of the Bill of Rights of our State Constitution. See Sec. 11 Bill of Rights.
In the Thalheim case the court approved the authorities which held that an indictment for embezzlement alleging the offense merely in a general way is one upon which
This statement is undoubtedly .accurate where the records are in the custody of the official charged with embezzlement or freely available to him for investigation. In this case, however, it appears from the order of the court that these records were in the custody of the court and the defendant and his counsel were permitted to examine them only upon certain conditions, namely, “in the presence of a representative of the State of Florida designated by the County Solicitor of this court.” The mere fact that the records “were kept by him or under his direction and supervision’’ obviously would not afford him the notice to which he is entitled unless he was at liberty to inspect them; for it is not at all likely that a person who occupied the position of Tax Collector of
In a Tax Collector’s office where such custom prevails, any clerk, deputy or employee of such officer who by reason of his employment receives into his possession in due course of the transactions of the office any money for State or county taxes and should convert the same to his own use, or secrete or withhold the same with intention to convert it to his own use, such employee, clerk or deputy would undoubtedly be amendable to punishment under the provisions of the said section of the General Statutes. And the culpability of such clerk or deputy would not be transmitted to his employer or imparted to him in the absence of guilty knowledge on his part.
To maintain a charge of embezzlement of State or county funds against a Tax Collector under the section of our statutes mentioned, it is necessary therefore for the State to prove that the money alleged to have been embezzled came into the possession of the accused and was •converted by him to his own use or secreted or withheld' by him with such intention. While the duplicate tax receipts which are in the form furnished by the State Comptroller and which are required to be used and which become a part of the records of the Tax Collector’s office, and which purport to be signed by the accused as Tax Collector, are admissible in evidence as was said in the Branch case supra, and again in White v. State, 78 Fla. 52, 82 South. Rep. 602, it may be the only
The question then arises, was the opportunity afforded him by the court to examine the records sufficiently to enable him to prepare his defense? The order was made January 18th, and the case was called for trial ten days later. In view of the large record and great number of exhibits in this case the length of time allowed for the examination of the records under the terms prescribed would seem to be inadequate; but no complaint was made
The first, second and third assignments of error question the sufficiency of the evidence to sustain the verdict. The one point insisted upon by counsel for the plaintiff in error in these assignments of error and which was emphasized upon the oral argument is, that, there was no evidence to show that the money alleged to have been embezzled by the defendant was received by him, or same into his possession or control. In reply to this it is urged in behalf of the State that the duplicate tax receipts submitted in evidence show the receipt of the money by the defendant, but his counsel assert in their brief and in oral argument repeated the assertion that the record shows that the receipts were not signed by the defendant. This statement of fact was not denied either in the brief of the Attorney General or by him upon the oral argument. We have examined the extensive record with the view of ascertaining if there was any proof of the signature of the defendant to any of the receipts offered in evidence to establish the reception of money by him on account of taxes which he converted to his own use and we have found nothing to establish such a fact. It is, of course, possible that we may have overlooked some word or statement in the great record' consisting of 2089 pages of typewritten matter, upon which the jury may have
Upon what evidence then does the State rely to establish the allegation that the defendant “did by virtue of his said office receive and take into his possession certain monies,” etc., which monies “so- received and -coming into his possession as aforesaid,” he d'id “embezzle and feloniously convert to his own use?” The testimony of Mr. McIntosh, the State Auditor, does not establish the allegation. He took the duplicate tax receipts and the “tax day-book record,” in which the reecipts were listed numerically and checked one by the other. He then added the amounts shown by these entries and the amount received from tax sales according to the report of individual certificates made to the clerk of the -court. “Those things represented what he (the defendant) himseld had collected on these two rolls,” said Mr. McIntosh, “according to the record in his office.” To these entries of course, were added' the poll tax collections for 1917, which were ascertained by counting the poll tax receipt -stubs, eliminating those marked void. Mr. McIntosh, of course, spoke from the books of accounts and records of the defendant’s office. His audit seems to have been thorough. And as to the matter of bookkeeping, his testimony was, no doubt, ample to establish the fact that
It was not shown by the State that the tax receipts which were personally signed by the defendant were for amounts which totalled more than the amounts accounted for by him. To have convicted the defendant of embezzlement it was necessary to have shown that he did not account for the monies which “he received,” and “that came into his possession as Tax Collector.” Manifestly, a conviction would not be warranted' by merely showing the amount charged against him on the tax roll for any year and deducting therefrom the insolvency list and the amounts paid in or accounted for, thereby showing a balance due. The balance, if any, shown to be due may be the amount embezzled or it may not, accordingly, as he actually received the money represented by the amount charged' on the roll less the insolvencies and sums for which he had accounted. Therefore, in such case, it is necessary as was done by the State Auditor to charge the amounts which the tax receipts showed had been collected, and to the amount thus shown add the amounts realized from tax sales and from that total deduct the sums account for and' paid. Now the duplicates of tax receipts issued by the defendant as Tax Collectors were admissible in evidence to show the amount received by him. Such is the language used in the Branch case. But in stating the account Mr. McIntosh used all the duplicates or copies of tax receipts which purported to have been issued from the office. In this there was an assumption of fact that they were all issued by the defendant. As State Auditor, Mr. McIntosh could do nothing else, because he was endeavoring to ascertain if there was
Witnesses were called in behalf of the State to prove the signature of tfie defendant appended to documents containing a statement of remittances to State and county officials of taxes collected, but none to prove fiis signature to documents showing receipts of money on account of taxes.
There was a “Tax d'ay-book” record in which tfie receipts for taxes paid were entered. Tfie entries in this book correspond with tfie duplicate tax receipts in tfie office. But no one undertook to state who made the en
The evidence in this case may have been sufficient to sustain a verdict in a civil action against the defendant to recover the amount of the deficit, but it was insufficient to sustain a conviction of embezzlement. While the defendant admitted that his books showed that he was “short” in Ms accounts with the State and county, there
No criminal intention or lack of good faith on the defendant’s part is shown further than may be shown by a “deficit” in his accounts, there were no false entries made by him in his books, he rendered no false accounts, he practiced no form of deceit, nor ran away with any money, nor was it shown that he spent large sums of money for his own use. No acts of this character were shown to establish an intent to embezzle. There was no evidence of any failure, neglect, omission or refusal for thirty days, or for any time, on the part of the defendant shown by the evidence to pay over to the State officials any money “collected” or “received” l)y Imn,
There were many other • assignments of error, among which are those which question the propriety of the court’s ruling in compelling the accused in open court to obey a subpoena duces tecum requiring the defendant to produce receipts acknowledging the payment by him to county and State officials of monies-collected at his office as Tax Collector on the tax rolls of 1916 and' 1917. It is unnecessary to discuss these assignments because the court’s action seems to have been harmless, even if it was error, which is doubtful. There seems to have been no dispute as to the money paid by the accused; the interest in the case centered around the question as to the money received by him. Besides receipts for money paid by him as Tax Collector may be considered as records of his office which are open to inspection and should be in possession of his successor. It would' also be useless to discuss the remaining assignments of error
Judgment reversed.