Brown v. State
| Citation | 109 So. 438,92 Fla. 538 |
| Parties | BROWN v. STATE. |
| Decision Date | 05 August 1926 |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Dade County; Tom Norfleet Judge.
Harris Brown was convicted of embezzlement, and he brings error.
Reversed.
Syllabus by the Court
Proof of check for $5,000 held not variance under information for embezzlement describing property as 'the sum of $5,000 lawful currency of the United States' (Rev. Gen. St 1920, §§ 5146, 6068). In a prosecution for embezzlement where the information describes the property involved as 'the sum of $5,000, lawful currency of the United States,' and the proof shows the property to have been a check in amount of $5,000, and not currency, this circumstance does not constitute a variance between allegation and proof, in view of section 6068, Rev. Gen Stat. 1920.
Defendant in good faith, without secrecy or concealment, retaining property under bona fide claim of right, upon reasonable grounds, was not guilty of embezzlement, however ill-founded his claim (Rev. Gen. St. 1920, § 5146). In a prosecution for embezzlement, where the evidence clearly shows that the defendant in good faith, and without secrecy or concealment, retained the property involved under a bona fide claim of right, based upon reasonable grounds, however ill-founded the defendant's claim may have been under the circumstances shown by the evidence, his action does not constitute the crime of embezzlement under section 5146, Rev. Gen. Stat. 1920.
Shipp, Evans & Kline, of Miami, for plaintiff in error.
J. B. Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
Plaintiff in error, hereinafter called the defendant, was convicted of embezzlement, the charge being based on section 5146, Rev. Gen. Stat. 1920.
The property involved is described in the information as 'the sum of $5,000, lawful currency of the United States.' The proof shows the property to have been a check in amount of $5,000, and not currency. In view, however, of the provisions of section 6068, Rev. Gen. Stat. 1920, this circumstance does not constitute a variance between allegation and proof. Thalheim v. State, 38 Fla. 169, 20 So. 938.
The prosecution arose out of the following circumstances: One Samuel Kantor was the owner of certain lands in Dade county. Kantor entered into an agreement in writing with Rocielle Realty Corporation by which he agreed to sell the lands to the latter for a total consideration of $65,000. The agreement was dated July 21, 1925. The 'closing date' of the sale was fixed by the agreement at 'forty days from (its) date,' which would be August 30, 1925. Upon the execution of this agreement the realty corporation paid Kantor the sum of $2,500 as 'binder or deposit,' to apply on the purchase price. On the closing date, August 30 1925, the realty corporation was to pay Kantor the further sum of $22,500 on the purchase price. Rocielle Realty Corporation then entered into an agreement with Columbia Specialty Paper Box Company by the terms of which the realty corporation agreed to sell the lands to the box company for a total consideration of $71,000, of which the sum of $2,500 was paid in cash by the latter purchaser to the realty corporation at the time of executing their agreement. The agreement between the realty corporation and the box company was dated August 6, 1925, and the 'closing date' thereof was August 29, 1925, on which latter date the box company was to pay the realty corporation the further sum of $28,500 on the purchase price. In other words, the realty corporation resold the lands to the box company at a profit of $6,000. The latter sale was negotiated through a Mr. Williams, a real estate salesman. The box company in turn sold the lands to a Dr. Jaysen. The evidence indicates that, when August 29, 1925, arrived, that being the 'closing date' between the box company and the realty corporation, the box company did not make the requisite payment of $28,500, as provided by its contract with the realty corporation. The realty corporation, however, does not appear to have then taken any steps to terminate or forfeit its contract with the box company. Soon thereafter, apparently early in September, a Mr. Harry Jeffrey, representing the box company, accompanied by Dr. Jaysen, opened negotiations with the realty corporation through Mr. Williams, the salesman, for an extension of time within which to make the second payment which became due on August 29, 1925. Rocielle Realty Corporation, it seems, was willing to grant the extension, provided the owner, Mr. Kantor, was willing to grant the realty corporation the requisite extension under their contract, and provided further the box company immediately paid the sum of $5,000 to the realty corporation on account of the contract between the box company and the realty...
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