Clifton v. State

• Decision Date: 12 August 1918
• Citation: 76 Fla. 244,79 So. 707
• Parties: CLIFTON v. STATE.
• Court: Florida Supreme Court

79 So. 707

76 Fla. 244

CLIFTON v. STATE.

Florida Supreme Court

August 12, 1918

Error to Circuit Court, Polk County; John S. Edwards, Judge.

William L. Clifton was convicted of obtaining money under false pretenses, and brings error.Reversed.

Whitfield and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

A judgment, imposing a fine and containing a provision that in default of the payment of the fine the defendant be confined in the penitentiary, is defective; the alternative sentence should be confinement in the county jail.

A motion in arrest of judgment reaches only such errors as appear upon the record, and, when addressed to the indictment or information, is effective only when they wholly fail to charge any offense, or their allegations are so vague and uncertain as to embarrass the defendant in the preparation of his defense or expose him after acquittal or conviction to substantial danger of another prosecution for the same offense.

A motion in arrest of judgment does not raise the question of the sufficiency of the evidence, nor does it reach a question of variance between the allegation and proof.

An indictment or information, deemed to be defective in point of form because of a faulty allegation of some material fact or element in the crime attempted to be charged, should be attacked by demurrer or motion to quash.The point should not be deferred until after verdict, and then incorporated in a motion in arrest of judgment.

An indictment for obtaining money under false pretenses, which alleges that the prosecutor was induced to pay, and the defendant did then and there receive, the money, is sufficient upon a motion in arrest of judgment to show a delivery to and receipt by the defendant of the money alleged to have been obtained.

The county school fund is a county fund, the moneys in which are set apart for a special purpose, viz. the maintenance and support of public free schools.The disbursement of the fund is a duty or trust committed to the county board of public instruction, which board is prohibited by the Constitution from disbursing the money in such fund for any other purpose than the maintenance and support of public free schools.

To constitute the statutory offense of obtaining property by false pretenses, there must not only have been a false representation by the defendant of a past or existing fact or circumstance, and such representation believed by the other party, but the latter party must have parted with his property to the defendant because of the representation.

An indictment against one for obtaining money by false pretenses should allege the connection or relation between the representation or statement and the delivery of the property by the prosecutor, when it does not appear that there is a natural connection between the two.

A false statement or representation of a fact by one person to another for the purpose of obtaining property from the latter must be of such nature or character as that, if the fact was as represented, it would place upon the latter a duty obligation, or desire to part with the property demanded.This is the so-called causal relation between the representation or statement and the delivery of the property and is an essential element of the crime of obtaining money or property by false pretenses.

In an indictment for obtaining property by false pretenses it is not sufficient to allege merely that the defendant's statement or representation induced the prosecutor to part with his property, but the causal relation must either appear because of the natural connection between the statement and the delivery of the property or it must be alleged specifically.

Public boards or commissions charged by law with disbursing public moneys have no lawful authority to part with the public money in their charge except for the purposes designated by law.A statement of fact, therefore, made to such a board, which does not place upon the board under the law the duty or obligation to disburse the public fund or a portion of it in their charge, cannot in law be the subject of a false representation so as to constitute the crime of obtaining money or property by such means.

The county superintendent of public instruction has no authority under the law to make a contract in behalf of the county board of public instruction without the latter's express authority to pay a stenographer in the superintendent's office for services rendered to the latter, either in his private or official character, that will create an obligation or duty on the part of the county board of public instruction to pay such expense out of the county school funds.Whether the county board has the power to authorize the county superintendent to employ a stenographer for any special purpose to be paid out of the county school fund not decided because the indictment in this case neither states such to be the fact, nor for what purpose the stenographer was employed.

COUNSELR. B. Huffaker and Wilson & Boswell, all of Bartow, for plaintiff in error.

Van C. Swearingen, Atty, Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

The plaintiff in error, who will be referred to herein as the defendant, was convicted of the offense of obtaining money from the county of Polk under false pretenses, and comes here by writ of error.

The indictment, omitting many of the formal parts, is as follows:

'The grand jurors of the state of Florida, inquiring in and for the body of the county of Polk, upon their oaths present that William L. Clifton on the 6th day of July, A.D. 1917, in the county and state aforesaid, unlawfully, designedly, and by a false pretense and with intent then and there to defraud the county of Polk in the state of Florida, did falsely represent and pretend to the board of public instruction of Polk county, Fla., that he, William L. Clifton, then and there superintendent of public instruction of said county and secretary of said board of public instruction, had hired and agreed to pay Marie Franklin, as stenographer in the office of the said board of public instruction, the sum of $50 per month for services as such stenographer, and did then and there by color and by means of said false pretense induce the said board of public instruction to issue its warrant for the sum of $50, payable to the order of the said Marie Franklin out of the funds and money of the county of Polk aforesaid; and he, the said William L. Clifton, did then and there take and receive said warrant and secure the indorsement of the said Marie Franklin thereon, and did thereafter cash the same and obtain thereon the sum of $50 of the moneys and property of the said county of Polk, and deliver to the said Marie Franklin only the sum of $30 thereof; whereas in truth and in fact, he, the said William L. Clifton, had not then and there hired and employed the said Marie Franklin as such stenographer at and for the said sum of $50 per month, but, on the contrary, had hired and employed the said Marie Franklin as such stenographer at and for the sum of $30 per month, and said board a public instruction was then and there indebted to the said Marie Franklin only in the sum of $30 and not in the sum of $50, as was represented and pretended falsely by the said William L. Clifton; and that he, the said William L. Clifton, then and there well knew that the representation so falsely made and pretended by him that he had hired the said Marie Franklin as such stenographer for the said board of public instruction of said county at and for the sum of $50 per month was false, and he, the said William L. Clifton, then and there made such false pretenses and representations for the purpose of defrauding the said county of Polk, and that the said board of public instruction, believing the said false representations to be true, and relying thereupon as true, were thereby induced to draw its said warrant for the sum of $50 payable to the order of Marie Franklin, and to deliver the same to the said William L. Clifton.And so the said William L. Clifton did in manner aforesaid, and by the making of such false pretense and representation, obtain of and from the board of public instruction of Polk county, Fla., the sum of $20 of the money and property of the said county of Polk and state of Florida, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.'

There was a verdict of guilty.A motion in arrest of judgment and a motion for a new trial were made and overruled.Thereupon the court entered the following judgment:

'It is the sentence of the court that you, William L. Clifton, pay a fine of $300 and the costs of this prosecution, and in default thereof that you be confined in the state penitentiary at hard labor for a period of one year.'

This judgment was erroneous because, the sentence being to pay a fine, the alternative sentence of imprisonment should have been confinement in the county jail.SeeGen. Stats. 1906, §§ 4011,4012,Florida Compiled Laws 1914;Thomas v. State,76 So. 780.

One of the assignments of error rests upon the order overruling the motion in arrest of judgment.The motion contained three grounds: First, the indictment charged no offense under the laws of Florida; second, it was vague, indefinite, and uncertain, in that it did not sufficiently allege and describe the ownership of the property alleged to have been secured, nor did it sufficiently allege the person defrauded by the defendant; and, third, because the state failed to show by the 'testimony' that the defendant secured any property belonging to the county of Polk.

A motion in arrest of judgment reaches only such errors as...