43 Fla. 524 | Fla. | 1901
Plaintiff in error was indicted on the 23rd day of December, 1897, in the Circuit Court for Alachua county for embezzlement, the indictment containing two counts, omitting formal parts, as follows r “1st. That Walter A. Sigsbee on the twenty-first day of April, 1897, with force and arms at and in. the county of Alachua aforesaid, being then and there an officer of the city of Gainesville, a municipal corporation under the laws of the State of Florida, to-wit:, clerk and treasurer, did by virtue of said office as clerk and treasurer and while such officer, to-wit: clerk and treasurer, receive and take into his possession certain moneys, the property of the city of Gainesville, at divers times between the seventh day of July, 1896, and April 21 st, 1897, to-wit: the sum of two thousand two hundred twenty-six dollars and fourteen cents for and in the name and on account of the city of Gainesville aforesaid, and the said money so as aforesaid coming into his possession by virtue of his said office as clerk and treasurer aforesaid he, the said Walter A. Sigsbee then and there, to-wit: on the twenty-first day of April, aforesaid, in the county and State aforesaid, did felonously embezzle and feloniously and fraudulently convert to his own use, to-
2nd. That Walter A. Sigsbee on the twenty-first day of April, 1897, in the county of Alachua aforesaid, being-then and there an officer of the city of Gainesville, a municipal corporation under the laws of Florida, to-wit: clerk and treasurer, whose duty then and there required him to receive public money belonging to said city of Gaines-ville, did by virtue of his said office as clerk and treasurer, and while acting as such officer, to-wit: clerk and treasurer, receive and take into his possession certain moneys, the property of the said city of Gainesville, at divers times between July 7th, 1896, and April 21st, 1897, to-wit: the sum of two thousand two hundred twenty-six dollars and fourteen cents, a more particular description of which is to the grand jurors unknown, for and in the' name and on account of the city of Gainesville aforesaid, and the said money so as aforesaid coming into' his possession by virtue of his said office as clerk and treasurer, aforesaid, he, the said Walter A. Sigsbee, then and there, to-wit: the twenty-first day of April aforesaid, in the county and State aforesaid, did fraudulently and wilfully with-hold, to-wit: the sum of two thousand two hundred twenty-six dollars and fourteen cents, a more particular description of which is to the grand jury unknown, so as to prove a defaulter to the city of Gaines-ville aforesaid, against the peace and dignity of the State of Florida and contrary to the statutes in such cases made and provided.
There appears in the transcript a bill of particulars filed under the indictment by the State Attorney, and it
The grounds of the motion in arrest of judgment not included in the motion for new trial are: 1. That the indictment charged defendant with a violation of section 2463 Revised Statutes after said section had been repealed.
2. That at the time defendant was indicted there was no law in Florida against embezzlement by a municipal officer except Chapter 4530 laws of 1897, which was passed after the time of the alleged offence by the defendant, and as to it would be ex post facto. The legislature amended section 2463, under which the indictment was found in this case, in 1897 by Chapter 4530, and the amendatory act declares all laws in conflict with it to be repealed. The amendment does not profess to operate retroactively, or to take away the right of the State to prosecute for a violation of section 2463 before it was amended. The general rule is that in the absence of a saving clause the repeal of a criminal statute carries with it all pending prosecutions thereunder, as well as the right to institute such proceedings. The mischief resulting from repeals without saving the right to prosecute for crimes actually committed became so glaring (Ex
In speaking of the effect of section 32 Article III, constitution of 1885, on repealed criminal statutes it is said in Raines v. State, 42 Fla. 141, 28 South. Rep. 57, that it was “to give to all criminal legislation a prospective effectiveness; that is to say, the repeal or amendment, by subsequent legislation, of a pre-existing criminal statute, does not become effective, either as a repeal or as amendment of such pre-existing statute, in so far as offences are concerned that have been already committed prior to the taking" effect of such repealing or amending law.” This was in harmony with previous views expressed by this court in the cases of Blue v. State, 32 Fla. 53, 13 South. Rep. 637, and Reynolds v. State, 33 Fla. 301, 14 South. Rep. 723. It is conceded that if the indictment had been found under section 2463 before it' was amended, the decisions referred to would be conclusive against the contention made, but as the State had not indicted the defendant when Chapter 4530 was enacted it is insisted that a different result should follow. The amendment in 1897 was not retroactive in. terms and can only be applied to cases arising under it subsequently.to its taking effect. All criminal offences occurring under the former law prior to its amendment must be governed. by that law whether a prosecution .was commenced before
It is specified in the motion to quash that the indictment does not sufficiently allege that the defendant was a public officer, nor is the ownership of the money alleged to have been embezzled clearly stated. The statute, section 2463 Revised Statutes, provides that “if any State, county or municipal officer embezzles or fraudulently converts to his own use, or fraudulently takes and secrets with intent so to. do any effects or property belonging to or in possession of the State, county, city or town, or if any such officer whose duty requires him to receive public money or property, or the money or property of another, shall fraudulently use, conceal or' wilfully withhold any of said money or property soi as to prove a defaulter, he shall be punished by imprisonment in the State prison not exceeding twenty years, and by fine not exceeding five thousand dollars. This section shall apply to any deputy, clerk or employe in any State, county or municipal office and to all school officers.” It is sufficiently alleged that defendant was clerk and treasurer of the city of Gainesville, a municipal corporation existing under the laws of the State of Florida, and that the money which it is alleged he embezzled was the property of the city of Gainesville. Defendant could legally hold the office of clerk and treasurer of the city of Gainesville under the laws of this State and the ownership of the money is sufficiently stated. No special defects in the indictment in the particulars mentioned are pointed out
Other grounds of the motion to, quash the indictment specify that the first charges embezzlement and fraudulent conversion by defendant in general terms, and fails to specify, any particulars of such embezzlement or fraudulent conversion, and that the second count., fails to specify the particulars of the fraudulent and wilful withholding of money by the defendant. It is also specified that the indictment is vague, indefinite and uncertain,, and charges no offence under the laws of Florida. The crime of embezzlement is statutory and has its origin in the necessity found to exist of providing for cases not embraced in the law relating to larceny and which were of equal turpitude with that offence. The early statutes on the subject in England and this country generally defined the offence of embezzlement and declared that the person committing it should be deemed guilty of larceny, or punished as if he had committed the crime of larceny. In construing such statutes the courts held, as a general rule, that the indictment should describe the property embezzled, and allege ownership and value as as in cases of larceny. This conduced to great particularity of allegation, and in many cases coming within the intent of the statute serious difficulty was encountered in alleging and proving' the particulars as to, the money or property coming into the hands of an agent, or one occupying a fiduciary relation. To obviate this difficulty . statutes have in many instances been passed providing that it should be sufficient to allege generally in such indictments the embezzlement, fraudulent conversion or taking with such intent, of any money to a certain amount.
There is. copied into the transcript what purports to-be a bill of particulars under the indictment, but it can not be considered a part thereof in determining its sufficiency. We must, therefore, test the indictment independent of the bill of particulars and without the aid of the provisions found in section 2897. If we apply the rules of criminal pleading stated in the cases of Grant v. State, 35 Fla. 581, 17 South. Rep. 225, and Thalheim v. State, 38 Fla. 169, 20 South. Rep. 938 (which were-proper under statutes then construed), to' the allegations in indictments under section 2463, the one before us would not stand the test. It will be seen by reading the decisions mentioned that they construed sections of the Revised Statutes defining embezzlements and declaring that the persons committing'them should be punished' as if they had been convicted of larceny, and it was held that, as a general rule, under such statutes, the indictment should describe the property embezzled with the same particularity ás is required in an indictment for larceny, especially so where the punishment for larceny was graded according to the value of the property stolen. It Will be observed that, section 2463 has no reference to the punishment as in cases of larceny and the value of the money or property embezzeled has nothing whatever to do
The statute provides that if any such officer, that is, any State, county or municipal officer, whose duty requires him to receive public money or property, or the money or property of another, shall fraudulently use, conceal or wilfuly withhod any of said money or property so as to prove a defaulter, he shall be punished, &c. The second count of the indictment sufficiently charges the receipt of public money by defendant in his-capaity of a public officer to the amount of two' thousand two hundred and twenty-six dollars and fourteen cents, and that while such officer he fraudulently and wilfully withheld the same so as to prove a defaulter. A more particular description of the money is alleged te» be unknown to' the grand jury, and in view of the rule above announced in reference to going into particulars on indictments againstpublic officers for fraudulently converting or withholding public money in their hands, we are constrained to hold that the description of the money in the second count of the indictment is sufficient. The money alleged to' be embezzled is stated
Another error assigned is that the court erred in instucting the jury as follows, viz: “The jury are admonished that there should be no mistrial in this case if it be possible for the jury to agree upon a verdict, if they can do so without violating their conscientious convictions based on the evidence. This case has taken -up a whole week of this term, and has necessarily been' costly to the State and county, and has forced the postponement of other important cases. The jury should therefore lay aside pride of opinion and judgment, examine any differences of opinion there may be among them in a spirit of fairness and candor, reason together and talk over such
The refusal to give certain requests to charge the jury on behalf of defendant are assigned as error and we have examined them. In the absence of the testimony we can not determine the propriety of some of the requests, others are fully covered by charges given in the case, and.some contain incorrect abstract statements of the law. None of the requests, for the reasons stated, will authorize this court to reverse the judgment.
Another .objection earnestly urged here is that the record fails to show that the jury was selected or elected as provided by law. The record -entry is: “Whereupon a jury was called and there came (six' named persons) who were duly empanelled and sworn to well and truly try the issue between the State of Florida and the defendant according to the evidence.” Section 2937 Revised Statutes provides that “no irregularity in any writ of venire facias, or in the drawing, summoning or empanelling' of petit jurors, shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made .before the returning of the verdict.” No objection whatever was made to the selection of the jury in the present case in the Circuit Court, and it is presented for the first time by the assignment of errors. Without deciding that the record entry is insufficient in reference to the selection of the jury, we hold that in the absence of any such objection in the lower court before verdict, and in the absence of any showing that defendant was injured
The assignments of error based on alleged objections to the admission and rejection of evidence, and the refusal of the court to continue the case can not, of course, be considered in the absence of the testimony upon which the rulings were made.
The judgment will be affirmed, and it will be so ordered.