36 Fla. 109 | Fla. | 1895
The plaintiff in error was couvicted in the court below •of the crime of embezzlement. This is the second time the case has been before this court. In 38 Fla. 464 et seq. (15 South. Rep. 225) the information upon which the trial and conviction was had is fully set out. On the former writ of error the judgment was reversed and a new trial ordered, and the result has been a second conviction and writ of error. Ten assignments of error are made. Only the second, third, eighth and ninth are argued.
The counsel for plaintiff in error says in his brief: “As to the first assignment in error, I shall pass without comment,, but most respectfully call the attention of the court, thereto.” Practically the same is said as to the fifth,' sixth and seventh assignments. These
The fourth assignment' of error, which was also one of the grounds of the motion for new trial, is as follows: “The verdict of the jury is contrary to the instructions of the court as to the Jaw of tlie case.” The only attempt at argument upon this assignment contained in brief of counsel for plaintiff in error reads as follows: “ As to the fourth assignment: The verdict is contrary to the instructions of the court as to the law of the case. I would most respectfully call the attention of the court to the charges asked by defendant and given by the court, which said instructions will be found on pages 36-40 inclusive, also the court’s general charge, and compare the evidence, and tlien see if the finding of the jury is not contrary to the charge and instructions of the court.” In this argument, if it can be called an argument, no error is specifically pointed out as having-been committed by the court, but the counsel invites us to the reading of six pages of instructions given by tlie court, and thirty pages of closely typewritten testimony, in order that we may ascertain for ourselves what he is talking about. We do not think this duty devolves us. We are not required to search this mass ■of matter in order to ascertain the error alleged to exist in it. ' All presumptions are in favor of the regularity of the judgment below until some error therein is specifically designated. To invite a court to examine nearly the whole of a record somewdiat voluminous, in order to ascertain if error exists in it, is no argument of an assignment of error, and this assignment might also be considered abandoned. Jacksonville, T. & K. W. Ry. Co. vs. Griffin, 33 Fla. 602, 15 South.
The entire argument (it it can be so called) upon the-sixth assignment of error was as follows: “As to the sixth assignment I shall also pass, and ask the court’s attention thereto; and when considered in connection with all the evidence in the case, I contend the same-was grave error.” This argument (?) is only an improvement upon that, relating to the fourth assignment, in this: as to that assignment the counsel also invited us to wade through and ascertain if there was error, which was not even positively alleged to exist in the-matter complained of. As to the present (the sixth assignment) the counsel contents himself with the bare assertion that he contends that the ruling complained of was grave error. This assertion is no argument. No more is stated than had already been alleged in the assignment of error. When no more is alleged in the brief, as to any assignment of error, then a bare statement that a ruling of the lower court was erroneous, no reasons being given, no principles of law stated, and no authorities cited, the assignment of error may be-regarded as abandoned by reason of failing to argue the same. Upon this point it has been said: “It is not enough to assert in general terms that a ruling of the trial court is wrong; a fair effort must be made to prove that it is wrong or the point will not be considered as having been made. Counsel can not make a point in an appellate tribunal by a naked general assertion for such an assertion will not be heeded. * *' In order to secure so much as notice of the point stated they must support it by a fair effort, adducing arguments and, if they can, citing authorities. A bare designation of the ruling as erroneous, without discussion, is not sufficient to entitle counsel to success
The second assignment of error is, that the court erred in overruling the motion for a new trial. The third, which is but a repetition of one of the grounds of the motion for new trial, is, that; the verdict was contrary to the evidence, and without evidence to support it. In view of the fact that two juries have found the same verdict against the defendant, we are loath to disturb the present verdict. Upon a most thorough and careful examination of the same we have reached the conclusion that it is not sufficient to support the verdict. The first count of the information charged the defendant with the embezzlement of two promissory notes which came to his possession by virtue of his being the agent and attorney of one Charles Brown. . The second count- charged the embezzlement of $700 in money which came to his possession in a similar
Barney Simmons, a witness for defendant, testified to being present when one of the notes was transferred
The court charged the jury as follows: “If you find from the evidence in this case, beyond a reasonable-doubt, that the defendant substituted his notes to. Charles Brown for the notes of Samuel W. Teague to. Charles Brown, and without the knowledge or consent of said Brown, and afterwards collected the notes fromTeague and fraudulently converted the same, or any part thereof, to his own use, or otherwise disposed of the same, or any part thereof, without the consent of said Brown, then you will find the defendant guilty.”' This charge is made the subject of exception and an assignment of error which is argued before us. The-statute under which the information was found (see. 2457 Rev. Stat. of Fla.) refers to an embezzlement by an officer, clerk, agent or servant of another. The-penalty is directed against such officer, clerk, agent or servant of another who embezzles or fraudulently converts to his own use without consent the property which has come into his possession or is under his care-by nature of such employment. The charge complained of is faulty because it eliminates from the question of defendant’s guilt the nature of his possession. The defendant claimed that the notes were not in his hands, by virtue of his being the servant or agent of Brown. If this be true, he can not be found guilty under the statute under which lie was accused and tried; and if he is guilty of any crime, it is of some-other offense-.
The judgment is reversed and a new trial awarded.