Akin v. State
| Decision Date | 20 December 1923 |
| Citation | 98 So. 609,86 Fla. 564 |
| Parties | AKIN v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Marion County; W. S. Bullock, Judge.
J. W Akin was convicted of forgery, and he brings error.
Reversed and new trial granted.
Syllabus by the Court
Essential elements of indictment stated. Generally an indictment for forgery is sufficient when the offense is charged with such degree of certainty as would enable one of common understanding to know what is intended, to enable the court to pronounce a proper judgment in case of conviction, to advise the defendant fully as to his defense; and sufficient facts constituting the offense should be charged that the acquittal or conviction may be pleaded in the event of a subsequent prosecution for the same offense.
Indictment not quashed if charging offense substantially in language of statute. An indictment on a statute will not be quashed on the ground that it charges no crime if it charges the offense substantially in the language although not in the exact words of the statute.
Failure to allege acts charged feloniously done does not affect sufficiency of indictment. At common law indictments for felonies should allege the acts constituting the crime to have been feloniously done; but, in consequence of the constitutional and statutory provisions of this state, the failure to allege that the criminal acts charged were feloniously done does not affect the validity or sufficiency of the indictment, when not required by the statute defining the offense.
Duty of trial judge to check improper remarks of counsel and seek to remote prejudicial effect by proper instructions; verdict not set aside because of improper remarks of counsel or omission of judge to correct where no objection made at the time unless prejudicial effect cannot be removed. It is the duty of the trial judge, whether requested or not, to check improper remarks of counsel to the jury, and to seek by proper instructions to the jury to remove any prejudicial effect they may be calculated to have against the opposite party. A verdict will not be set aside by an appellate court because of such remarks or because of any omission of the judge to perform his duty in the matter, unless objection be made at the time of their utterance. This rule is subject to the exception that, if the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence, in such event a new trial should be awarded regardless of the want of objection or exception.
Within rule that counsel are restricted to evidence and reasonable deduction in argument, they have wide discretion. In argument to the jury, counsel for all parties are restricted to the evidence and reasonable deductions therefrom, but within this rule they have a very wide discretion.
New trial granted for misconduct of counsel where verdict influenced. Any attempt to pervert or misstate the evidence or to influence the jury by the statement of facts or conditions not supported by the evidence should be rebuked by the trial court; and, if by such misconduct a verdict was influenced, a new trial should be granted.
R. A. Burford and R. B. Bullock, both of Ocala, for plaintiff in error.
Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.
In January, 1922, J. W. Akin was tried and convicted for forgery in Marion county on an indictment the essential parts of which are as follows:
'In the circuit court of the Fifth judicial circuit of the state of Florida, for Marion county, at the fall term thereof, in the year of our Lord one thousand nine hundred and twenty-one, Marion county, to wit:
'In the name and by authority of the State of Florida:
'The grand jurors of the state of Florida, inquiring in and for the body of the county of Marion, upon their oaths do present that J. W. Akin, whose Christian name is to the grand jurors unknown, late of the county of Marion aforesaid, in the circuit and state aforesaid, laborer, on the 25th day of September, in the year of our Lord one thousand nine hundred and twenty-one, with force and arms, at and in the county of Marion aforesaid, did falsely make, forge and counterfeit the indorsement of the signature of Will Taylor on the back of a certain written order for money of the tenor following, to wit:
Sept. 24, 1921.
'Across the end: 'Receivable for all dues to the city.'
'Indorsed on the back thereof: 'Will Taylor,'--with the intent then and there to injure and defraud Will Taylor, city of Ocala, a municipal corporation under the laws of the state of Florida, and divers other persons to the grand jurors unknown.'
The sufficiency of this indictment was tested by a motion to quash and by a motion in arrest of judgment, the grounds of both motions being in effect that (1) the said indictment charges no crime under the laws of Florida; (2) section 5206, Revised General Statutes of Florida, punishing forgery, has no application when the alleged forgery relates to the indorsement of an order for money; (3) it is not affirmatively alleged in the said indictment that the order for money set out therein was feloniously or falsely made, altered, forged, or counterfeited.
The motion to quash and the motion in arrest of judgment were both overruled by the trial court, and his order is made the basis of the first and second assignments of error.
Section 5206, Revised General Statutes of Florida 1920, defining and punishing forgery, is as follows:
'Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, justice of the peace, town clerk, or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be punished by imprisonment in the state penitentiary not exceeding ten years or in the county jail not exceeding one year.' Generally an indictment for forgery is sufficient when the offense is charged with such degree of certainty as would enable one of common understanding to know what is intended, to enable the court to pronounce a proper judgment in case of conviction, to advise the defendant fully as to his defense; and sufficient facts constituting the offense should be charged that the acquittal or conviction may be pleaded in the event of a subsequent prosecution for the same offense. 12 R. C. L. p. 154, par 18.
Under the rule as prescribed by this court an indictment on a statute must charge the offense in the language of the statute, or in language of equivalent import. Cook v. State, 25 Fla. 698, 6 So. 451; Roberts v. State, 26 Fla. 360, 7 So. 861; Schley v. State, 48 Fla. 53, 37 So. 518; Hollingsworth v. State, 73 Fla. 44, 75 So. 612. An indictment on a statute will not be quashed on the ground that it charges no crime if it charges the offense substantially in the language, although not in the exact words, of the statute. Jackson v. State, 26 Fla. 510, 7 So. 862.
At common law indictments for felonies should allege the acts constituting the crime to have been feloniously done; but, in consequence of the constitutional and statutory provisions of this state, the failure to allege that the criminal acts charged were feloniously done does not affect the validity or sufficientcy of the indictment, when not required by the statute defining the offense. McCaskill v. State, 55 Fla. 117, 45 So. 843; Riggins v. State, 78 Fla. 459, 83 So. 267; State v. Murphy, 17 R.I. 698, 24 A. 473, 16 L. R. A. 550.
An inspection of the indictment in the light of the foregoing decisions and the statute as quoted in this opinion discloses that the indictment charges the offense substantially in the language of the statute, that the statute (section 5206, Rev. Gen. Stats. of Fla.) covers the forgery of an indorsement of an order for money, and, since the offense is charged substantially in the language of the statute, and the statute does not carry the word 'feloniously,' it is not necessary to allege that the offense was feloniously committed. The order overruling the motion to quash and the motion in arrest of judgment was not error. Smith v. State, 29 Fla. 408, 10 So. 894; King v. State, 43 Fla. 211, 31 So. 254; Turnipseed v. State, 45 Fla. 110, 33 So. 851; Miller v. State, 71 Fla. 338, 71 So. 280; Jernigan v. State, 83 Fla. 74, 90 So. 699; Poage v. State, 3 Ohio St. 229; 12 R. C. L. 141; 26 C.J. § 16, p. 921; United States v. Jolly (D. C.) 37 F. 108; Fry v. State. 78 Tex. Cr. R. 435, 182 S.W. 331, 332; Saucier v. State, 102 Miss. 647, 59 So. 858, Ann. Cas. 1915A, 1044; Crossland v. State, 77 Ark. 537, 92 S.W. 776.
The third, fourth, seventh, eighth, ninth, tenth, eleventh twelfth, and thirteenth assignments of error all challenge the refusal of the...
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