Craig v. State
| Decision Date | 25 February 1928 |
| Parties | CRAIG v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Volusia County; W. W. Wright, Judge.
Oscar W. Craig, alias R. E. Falvey, was convicted of embezzlement and he brings error.
Affirmed.
(Syllabus by Ellis, C.J.)
(Syllabus by Strum, j.)
Jones & Green, of De Land, for plaintiff in error.
Leo H Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.
The plaintiff in error was indicted for embezzlement of $162.22 of the goods and chattles of the Atlantic Coast Line Railroad Company. The money was described as 'currency of the United States of America, a better description of which is to the grand jurors unknown.' The date of the commission of the offense was alleged as being on the 26th day of November 1925, in Volusia county, Fla., 'and on divers other days and dates after said date and before the filing of this indictment.' The indictment was filed November 17, 1926.
The accused pleaded not guilty, was tried and convicted of the offense charged, and judgment entered against him. On the day the accused entered his plea of not guilty he moved for a bill of particulars. Whether the motion was before or after the plea the record does not disclose. He was placed on trial on December 8, 1926. The motion for a bill of particulars was denied. That ruling is assigned as error.
The rule as to requiring the state to furnish to the defendant a bill of particulars in a criminal case in which he is charged with embezzlement leaves the matter to the discretion of the trial court. Although it recognizes the right of the defendant in such case to be furnished with a bill of particulars in view of the general terms in which the charge under the statute may be made, yet the application must be properly made and accompanied or supported by a showing that the bill of particulars is necessary for the proper administration of justice. See Thalheim v. State, 38 Fla. 169, 20 So. 938; Eatman v. State, 48 Fla. 21, 37 So. 576; Mathis v. State, 45 Fla. 46, 34 So. 287.
The application should be properly made; that is to say, it should be made before pleading to the merits. If the indictment is sufficiently full in its allegations of fact constituting the crime charged to enable a person to plead to it, the greater part of the reason for allowing the particulars does not exist. The application should be accompanied or supported by a showing that the accused could not properly prepare his defense without the bill of particulars. The motion does not rest upon a legal right, but it is a matter within the trial court's discretion, and its order will not be reversed unless an abuse of discretion is made to appear. Mr. Justice Shackleford in the case of Mathis v. State, supra, discussed fully the rule and the reason underlying. There is no need to attempt to make it clearer. His discussion of it was thorough.
Now, in this case the record does not disclose that the application was made before pleading to the merits. Counsel in their brief state that it was, but that is not the record. It cannot be presumed that the application was made before pleading to the merits. The application was not so much for a bill of particulars as for a detailed statement of the evidence by which the state proposed to prove its case. The motion was for a specification of the manner, time, place, and thing embezzled. It asked for a specification of 'wherein and in what manner,' if any, the defendant embezzled the money.
The thing embezzled, the place where, and the amount taken, were all alleged in the indictment. The statute, section 6068, Revised General Statutes, confines the proof of the crime to a period of six months from the date alleged. The defendant, therefore, could have reasonably asked only for the dates upon on which, or shorter periods than six months within which, the embezzlements occurred. A bill of particulars is intended merely to give notice and guard against surprise on the trial; it does not affect the indictment, is not part of the record, and not open to demurrer. It affects the proof and mode of trial only. See Mathis v. State, supra.
It is difficult, if not indeed impossible, to conceive how a bill of particulars could be necessary in a case like this to a proper administration of justice. If the defendant was advised of the nature and cause of the accusation against him and had notice of the dates on which the acts constituting the offense were committed, there was no necessity for a bill of particulars. All of this information was given in the indictment. The statements in the motion intended to show why a bill of particulars was necessary are, in the last analysis, mere inadequate attacks upon the sufficiency of the indictment.
We think there is no merit in that assignment of error.
The defendant was a ticket agent at De Land Junction, employed by the Atlantic Coast Line Railroad Company. He had charge of the office at night, during which time, on different dates, so the evidence tended to show, be sold tickets to passengers as they applied for them. He marked upon the stubs of some of the tickets different destinations from those to which the corresponding tickets were sold. The stub markings showed a shorter number of miles for which transportation was sold than that for which the corresponding tickets were sold. The following morning he would account to his superior, who had charge of the office during the day, for a sum of money equal to that which the ticket stubs showed he should have on hand, and retained and converted to his own use the difference between that sum and the sums he had actually received for tickets which had been sold for greater distances of transportation. A series of such transactions extended through a period of many weeks. The sum total of his several embezzlements amounted, according to the verdict of the july, to the sum of $116.70.
The counsel for the accused says that the state should have been required to elect between these several embezzlements which particular transaction it would rest its case upon and the prosecution should have stood or fallen on that; that charging the accused of one embezzlement the state should not have been permitted to prove fourteen; that even though the accused should have been guilty of thirteen embezzlements within the time alleged at the place alleged in the same continuous employment, he should be held to be not guilty if in the remaining instance selected by the prosecuting attorney upon which the prosecution should rest the jury should have thought the case not sufficiently established.
The accused was in continuous employment of the Atlantic Coast Line Railroad Company during the period covered by the several transactions to which evidence was submitted. The aggregate of his defalcations amounted to more than a hundred dollars during several weeks or months. His conviction or acquittal of the charge would be a bar to another prosecution covering the same period alleged in the indictment and limited by statute.
As said by the Supreme Court of Illinois:
Ker v. People, 110 Ill. 627, 51 Am. Rep. 706; Jackson v. State, 76 Ga. 551; State v. Reinhart, 26 Or. 466, 38 P. 822.
The case of Edelhoff v. State, 5 Wyo. 19, 36 P. 627, cited by counsel for plaintiff in error, we do not regard as stating the correct rule as applied to the situation existing in this case.
The indictment alleged that the thing embezzled was 'dollars currency of the United States of America,' a better description of which was unknown to the grand jurors. The description of the thing stolen as 'currency of the United States of America'...
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