Eatman v. State

• Decision Date: 30 November 1904
• Citation: 37 So. 576,48 Fla. 21
• Parties: EATMAN v. STATE.
• Court: Florida Supreme Court

37 So. 576

48 Fla. 21

EATMAN v. STATE.

Florida Supreme Court, Division B.

November 30, 1904

Error to Criminal Court of Record, Volusia County; Isaac A Stewart, Judge.

M. W Eatman was convicted of embezzlement, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. While, in a criminal prosecution on an information for embezzlement, the defendant would be entitled to a bill of particulars upon proper application, an appellate court will not disturb a ruling of the trial court denying a bare motion for a bill of particulars made 'on the ground of the vagueness, indefiniteness, and general way in which the charge of embezzlement was made in the information,' when nothing is shown in support of the motion.

2. An information in which it is charged that the defendant, on July 15, 1903, in Volusia county, Fla., being then and there the agent and servant of the Doty & Stowe Company, a corporation, 'did then and there, by virtue of his said employment as such agent and servant, receive and take into his possession' certain designated property of a stated value 'of the money, goods, and chattels of said Doty &amp Stowe Company,' etc., followed by the allegation 'And did afterwards, to wit, then and there embezzle and fraudulently convert the same to his own use, without the consent of the said Doty & Stowe Company,' etc., sufficiently alleges that the ownership of the property was in the Doty & Stowe Company at the time named in the information and at the time of the embezzlement or fraudulent conversion charged.

3. In a prosecution for embezzlement, a charge that if the jury believe from the evidence, and beyond a reasonable doubt, that the defendant, within a named county of the state, being the agent and servant of the Doty & Stowe Company, a corporation, and by reason of his employment as such agent or servant of said company received and took into his possession a certain sum of money belonging to the said Doty & Stowe Company, as alleged and set forth in the information, and afterwards, in the month of July, 1903, fraudulently converted or appropriated the same to his own use without the consent of the said Doty & Stowe Company, they will find the defendant guilty as charged--is sufficient as to the ownership of the property at the time of the conversion, when there is evidence to sustain the information which charges embezzlement of fraudulent conversion, and alleges that money of said Doty & Stowe Company was received by the defendant as agent on July 15, 1903, and that the defendant did afterwards, to wit, then and there embezzle and fraudulently convert the same.

4. Charges in a prosecution for embezzlement upon the theory that an agent engaged in the employment of a corporation at selling goods, and who is authorized to make collections on his sales, will be guilty of embezzlement in appropriating to his own use money so collected, when by the terms of his employment he is required to remit or send the money collected or checks paid to him to his employer, and not permitted to use the same, are properly given where there is testimony in the case that by the terms of the defendant's employment he was required to remit to his employer all collections made by him for his employer, and that the defendant was expressly forbidden by the terms of his employment to use any collections made by him for his employer.

5. In a prosecution for embezzlement, requested charges upon the theory that if the defendant in good faith believed he had a right to use collections made by him, and did in such good faith, and without secrecy or concealment, use them, however frivolous or ill-founded his claim of right might in fact be, if he honestly entertained such belief he would not be guilty, are improperly refused when there is testimony in the case which tended to show a bona fide belief on the part of the defendant that he had authority to use such collections, and that there was no secrecy or concealment involved in such use.

6. Requested charges, not supported by the testimony in the case, are properly refused.

7. A question which seeks to ascertain the knowledge of the witness independent of the contents of a writing calls for primary evidence, and is not subject to the objection that it calls for secondary evidence of the contents of the writing.

8. In a prosecution for embezzlement the admission in evidence of receipts and checks showing the payment of money to the defendant before the date of the alleged embezzlement is not a violation of section 2897, Rev. St. 1892, which provides that evidence may be given of any such embezzlement or fraudulent conversion committed within six months next after the time stated in the information, when the information charges embezzlement or fraudulent conversion, and not a taking with intent.

9. In a prosecution for embezzlement, evidence of the payment of a check made payable to the defendant is properly admitted when the payment was made to and received by the defendant on account of a debt due the employer.

10. Letters which tend to contradict the testimony of a witness and that have a bearing on the issue should be admitted in evidence.

11. Where testimony is improperly excluded and subsequently admitted, the error is cured.

12. Where no injury is shown, the ruling of the trial court in refusing to permit a witness to testify a second time in answer to the same question will not be disturbed.

13. Questions that do not appear to be material to the issue should be excluded on proper objection.

14. In a prosecution for embezzlement, where the defendant seeks to show that he retained the money received by him for his employer, believing in good faith that he had a right to do so because of a debt due him by his employer, testimony that his employer was indebted to the defendant is admissible upon the question of intent.

15. In a prosecution for embezzlement the defendant has a right to testify as to his belief that he had authority to use the money alleged to have been embezzled by him.

16. In a prosecution for embezzlement, testimony as to matters tending to show the fraudulent conversion of collections of money made by the defendant in the course of his employment other than and prior to that alleged to have been embezzled is admissible only for the purpose of proving or illustrating the intent of the defendant in committing the alleged act of embezzlement for which he is being tried.

17. In a prosecution for embezzlement, testimony as to trouble, misunderstanding, and ill feeling between the defendant and his employer, a corporation, is admissible as affecting the credibility of the testimony given by an officer of the corporation in the case.

18. It is competent to show by proper secondary evidence the contents of a circular letter alleged to have been sent by mail to a particular person, as the sending by mail raises a presumption from which the jury might find it was received; but secondary evidence of the contents of a similar circular letter received by another person, engaged in similar employment, is irrelevant and immaterial.

19. Where a witness testifies that he has no distinct independent recollection of figures except as he finds them in certain books of account, and that he could not state the figures without the aid of the memorandum of them taken from the books, he should not be permitted to testify as to such figures from the memorandum, as the books themselves are the best evidence of what is contained in them.

20. Parol testimony as to a verbal understanding between parties as to the application of amounts to become due for services to be rendered may be admissible in evidence even though the amount to be received for the employment was subsequently reduced to writing, when the writing contains no provision as to the application of amounts to become due, since such parol evidence does not contradict the provisions of the writing, which has no provision as to the application of amounts to become due.

21. In a prosecution for embezzlement, letters written by the defendant, which tend to illustrate the conduct of the defendant in connection with his collections for his employer, may be admissible as bearing on the intent of the defendant in dealing with the collection alleged to have been embezzled.

COUNSEL

W. A. MacWilliams and Pope & Pope, for plaintiff in error.

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

OPINION

WHITFIELD J.

The plaintiff in error was convicted of the crime of embezzlement in the criminal court of record for Volusia county, and from the sentence imposed brings this writ of error.

The information charges: 'That M. W. Eatman, late of the county of Volusia, and state of Florida, on the 15th day of July, in the year of our Lord 1903, in the county and state aforesaid, with force and arms, being then and there the agent and servant of the Doty & Stowe Company, a corporation doing business in the state of Florida, did then and there by virtue of his said employment as such agent and servant, receive and take into his possession the sum of one hundred dollars and sixty-two cents, of the value of one hundred dollars and sixty-two cents, of the currency of the United States of America, the denomination of which ans a more particular description of which said money is to your informant unknown, of the money, goods, and chattels of said Doty & Stowe Company, a corporation as aforesaid, and did afterwards, to wit, then and there, embezzle and fraudulently convert the same to his own use, without the consent of the said Doty & Stowe Company, a corporation, as aforesaid, against the form of the statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and...