Wilson v. State

Decision Date05 April 1904
Citation47 Fla. 118,36 So. 580
PartiesWILSON v. STATE.
CourtFlorida Supreme Court

In banc. Error to criminal Court of Record, Hillsborough County W. S. Graham, Judge.

W. H Wilson was convicted of a crime, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The error, if any was committed by the court, in refusing to strike testimony, was cured by subsequently striking it and directing the jury to disregard it.

2. The admission of testimony that could not possibly harm the accused under the facts admitted will not constitute reversible error.

3. The action of the court in overruling an objection to a pertinent question to a state witness will not be reversed, especially when the answer thereby elicited tended to help the accused.

4. On a trial for the embezzlement of a horse hired to drive in one county, it having been proven that the horse was driven into another county and left with a liveryman from whom the accused, a stranger, obtained money, the state may ask the defendant, who volunteers as a witness: 'When you got that money from Mr. Adams, and left that horse and buggy there with him, he being an entire stranger to you, did you tell him that this horse and huggy did not belong to you?' On the direct examination the witness had testified he had not told Adams the horse belonged to him (witness).

5. Questions directed to the defendant on cross-examination as to matters within his own breast, that offer opportunity for explanation of suspicious circumstances, that are not answered, nor pressed by the state, do not constitute ground for reversal.

6. Where, in the argument of counsel to the jury, no fact not in evidence is assumed, this court will not scrutinize with nicety the logical force of arguments assigned as ground for reversal; nor will the court below be reversed for refusal to interfere with the argument because it is illogical, or not based on deductions reasonably inferable from the facts.

7. Instructions amounting to an affirmative charge for the accused are properly refused when the evidence supports a verdict of guilty. As to whether they may ever be proper in criminal cases, see McCray v. State, 34 So. 5, 45 Fla. 80.

8. On a trial for embezzlement, it is proper to refuse to charge that, if the jury should find certain facts, the defendant was guilty of larceny, and for that reason should be acquitted of the charge of embezzlement, when the facts in evidence are not sufficient to make out a case of larceny.

9. Instructions that pick out and emphasize certain phases of the evidence as to fraudulent conversion, to the exclusion of other evidence on that point, or are predicated upon an isolated fact or part of the evidence not conclusive of the merits of the case, are properly refused.

10. Where a stranger, who had hired a horse and buggy in another county, goes to a liveryman to borrow money, and saying 'I will leave the horse and buggy here with you, and will return to-night or to-morrow and pay you the money,' and getting the money, leaves the horse and buggy, and never returns, the question of whether a pledge or pawn was thereby intended is properly left to the jury, under proper instructions.

11. Assignments not argued are treated as abandoned.

13. When a horse and buggy are hired in the

12. An instruction that has no possible relevancy to the issues of the case is properly refused.

13. When a horse and buggy are hired in the county of H. to be driven and used only in the county of H., but are driven into another county almost immediately, where they are left with a liveryman, from whom the hirer, a stranger, borrowed money and other evidences of a felonious intent are shown, the venue is sufficiently shown to be in the county of H.; giving due weight to the finding of guilty by the jury, and the approval of the trial court.

14. The evidence supports the verdict.

15. Where the statute defines the crime of embezzlement, and provides that one convicted thereof 'shall be punished as if he had been convicted of larceny,' it has reference to the general law on the subject of larceny, and not to special cases.

COUNSEL

Macfarlane & Glen, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

COCKRELL J.

The plaintiff in error was convicted of the crime of embezzlement of a horse worth $105, and sentenced to the State Prison for a term of three years.

There was evidence from which the jury might find that Wilson hired from one Miller, at Tampa, a horse and buggy to drive to Plant City, and to return the next day, for an agreed price of $5 for the trip. Tampa and Plant City are both in Hillsborough county. After reaching Plant City, Wilson continued on to Lakeland, in Polk county, which he reached that night, and placed the horse in a livery stable there. As soon as he could find the liveryman, he represented that he was in need of $15 to enable him to go to Orlando to see an uncle, and, saying, 'I will leave the horse and buggy here with you, and will return to-night or to-morrow and pay you the money,' secured from the liveryman, to whom he was an entire stranger, the sum desired. Upon securing the money he went on to Orlando, and thence to Sanford, and into Marion county, where he was arrested some time after. The Tampa man from whom the horse was obtained found it in Lakeland.

The first error assigned is that the court erred in denying the motion of defendant to strike the answer of the witness Miller, that 'I went to get my horse, and had to pay $15 before I could come in possession of him.' A sufficient answer to this assignment is found in the fact, shown by the record, that this answer was subsequently stricken, and the jury instructed to disregard it. The error, if any, was fully corrected below, and no harm was done thereby. The next alleged error was also harmless. We do not see that the statement of the witness Miller that he drove his horse back to Tampa from Lakeland could possibly have injured the accused, under the admitted facts of this record.

The third assignment is the refusal to permit the defendant to prove that his father offered to return Miller any expense he had been put to in the matter. We do not see what possible bearing on the innocence of the defendant such testimony could have, and there was no error in excluding it.

The next assignment is that the court erred in permitting J. Q. Adams, the Lakeland liveryman, to be asked, and to answer, the question, 'Would you have let him have the money if he had not left the horse and buggy with you?' to which the answer was, 'No, sir, because I did not know him; but, if he left the horse and buggy with me, I was sure he would return and bring back my money.' No motion was made to strike the answer. The state was endeavoring to show that the conversion was felonious, and in this it had shown the hiring of the horse to go only to Plant City, and the actual going to Lakeland, in another county, the borrowing of the money from the liveryman there by defendant, who was a total stranger, and the leaving of the horse and buggy with the liveryman; and it was pertinent for the state to prove that this leaving was by way of pledge or pawn. The contract is to be gathered from the situation of the parties and the language used by them, and it was competent to show that one party thereto understood the transaction to have been a pledging of the property. Without determining whether the transaction was, in law, a pledge, it suffices here to say that the answer elicited tended rather to help the defense, and could not, therefore, be considered reversible error.

The defendant was asked by the state: 'When you got that money from Mr. Adams, and left that horse and buggy there with him, he being an entire stranger to you, did you tell him that this horse and buggy did not belong to you?' The defendant, on the direct examination, had testified that he did not tell Mr. Adams that the horse and buggy were his (defendant's). There is no fact assumed in the question that was not admitted by the defendant. The concealment of the ownership of the horse was a material circumstance, and it was not improper for the state to set off against the defendant's statement that he had not claimed the horse as his, the further fact that he did not disclose that the horse was not his. The next assignment may well be considered in connection with this. The defendant was asked, 'Did you not know at that time that, if you had told Mr. Adams that you didn't own that horse and buggy, that he would not have let you have the money?' and answered, 'Why, I did not get any money on the horse; didn't give any security or anything. I made the acquaintance of Mr. Adams, and borrowed the money from him.' It appears, therefore, the question objected to was not answered, nor was it further pressed by the state. A felonious design is to be gathered from various acts and circumstances, and the defendant, having voluntarily offered himself as a witness, might properly be questioned on cross-examination as to matters within his own breast, particularly when an opportunity is thus offered for explanation of suspicious circumstances.

The attorney for the state was permitted, over the defendant's objection, to address the jury as follows 'Don't you know, if there had been any Thomas F....

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  • Young v. State
    • United States
    • Florida Supreme Court
    • March 15, 1923
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    • May 28, 1936
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    • Florida Supreme Court
    • December 19, 1916
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