50 Fla. 138 | Fla. | 1905
An information was filed in the Criminal Court of Record for Hillsborough county on the 13th day of February, 1905, charging that A. C. Teston, whose Christian name is to the Solicitor unknown, on the 2nd day of January, A. D. 1905, in the county of Hillsborough, Florida, “being then and there the treasurer of the Carriage and Wagon Workers Union number one hundred fifteen, a voluntary association composed of the said A. C. Teston, one H. L. Phillips and S. C. Cobb, whose Christian names are to the solicitor unknown, and divers other persons whose names are to the solicitor unknown did then and there receive into his possession by reason of his office as treasurer as aforesaid one hundred and ninety six dollars in money current in the United States, a further description of which is to the solicitor unknown, of the value of one hundred and ninety six dollars, of the property of the Carriage and Wagon Workers Union, number one hundred and fifteen as aforesaid, and did then and there unlawfully, feloniously and fraudulently convert the one hundred and ninety six dollars in money a3 aforesaid to his own use against the forms,” etc.
Upon arraignment the defendant pleaded not guilty, was tried and a verdict of guilty rendered. Motions in arrest of judgment and for a new trial were duly made and overruled, and to the sentence imposed this writ of error was prosecuted.
The plaintiff in error has complied with the order heretofore made by us in this cause, by filing here a proper typewritten transcript of the bill of exceptions.
The grounds of the motion in arrest of judgment, which are insisted on, may be briefly summarized as follows: The information charges no crime, does not allege the defendant’s term of office had expired, nor that there wa*
We shall first consider the last ground for if Chapter 5160, under which the information must have been found is void, the case is ended. The Chapter consists of but two sections, and is as follows:
“AN ACT in Relation to the Crime of Embezzlement.
Be it Fnacted by the Legislature of the State of Florida:
Section 1. If any officer, agent, clerk, servant or member of any incorporated company, or if any officer, clerk, servant, agent or member of any co-partnership, society or voluntary association; or if any clerk, agent or servant of any person, embezzles or fraudulently disposes of, or converts to his own use, or takes or secretes with intent so to do anything of value which has been entrusted to him, or has come into his possession, care, custody or control by reason of his office, employment or membership, he shall be punished as if he had been convicted of larceny.
Sec. 2. If the property, or thing of value, embezzled belongs to several persons, owners or members of a society or voluntary association, it shall be sufficient, in the indictment or information, to allege the ownership to be in any one or more of any such persons, owners or members or in the society, association or partnership by its name.”
The particular provision of the Constitution alleged to have been violated is that part of Section 16, Article III which declares that “each- law enacted in the legislature shall embrace but one subject and matter properly connected therewith which subject shall be briefly expressed
While embezzlement is a statutory, not a common law offense, yet the word “embezzle” has now acquired a technical meaning as has the synonomous or kindred phrase “fraudulently convert to his own use,” and it is sufficient to charge the crime in the language of the statute, and tested by this language the information is sufficient. We are not permitted to read into the statute words in former acts applying to other classes of individuals, which have been industriously omitted and which if inserted would cause embarrassment if not annihilation of the statute so construed. When the act of fraudulently converting to one’s own exclusive use the property which one owns jointly with others, is sought to be made a crime, the legislature might well dispense, as was done here, with the
No bill of particulars was applied for and the crime was charged in language sufficiently clear and definite to apprize the accused and as a predicate for a plea of former acquittal or conviction and the motion in arrest was properly overruled.
Exceptions were taken to various rulings and remarks by the court at the trial, but beyond a general caution to the trial judge against a possible intimation to the jury of his own views as to the weight to be given to particular evidence admitted or to the credibility of any particular witness, we shall treat specifically only a few of the assignments based on these exceptions.
The defendant sought on cross-examination of certain State witnesses, who were members of the Union, after the fact was elicited that the treasurer was bonded in a guaranty company, their understanding as to the position of the company and its refusal to indemnify the Union for the.loss unless the accused be convicted. If these witnesses so understood the situation, this might go to their bias and interest and should have been admitted. In view of the subsequent admissions by the defendant we might hesitate to reverse on this ground alone, but the refusal to permit the question to be answered was erroneous.
■ The State introduced evidence tending to show that the defendant was in straightened circumstances just prior to
The allowance of leading questions is within the discretion of the trial court and not subject to review by us.
Evidence was rejected which it is claimed should have been admitted as part of the res gestae, but without setting it out we think it properly rejected, either as hearsay or as self serving declarations.
What we have said in the discussion of the information disposing of the contention of the plaintiff in error that the instructions requested should have been given. They were properly rejected.
For the error pointed out the judgment is reversed and a new trial awarded.
