Ellis v. State

• Decision Date: 26 October 1917
• Parties: ELLIS v. STATE.
• Court: Florida Supreme Court

76 So. 698

74 Fla. 215

ELLIS v. STATE.

Florida Supreme Court

October 26, 1917

Error to Circuit Court, Jackson County; Cephas L. Wilson, Judge.

G. W Ellis was convicted of disposing of mortgaged property, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

When the constitutional validity of the statute on which a prosecution is based is not raised in the trial court, but is merely suggested in the briefs filed in the appellate court and the law is not patently in conflict with organic law, its validity will not be considered.

Where the allegations of an indictment are in substantial conformity to the statute defining the crime alleged, and are sufficient to show the nature and cause of the accusation against the defendant, it is not error to deny a motion to quash the indictment.

A bill of particulars may be awarded to a defendant in a criminal prosecution, where he is entitled to more detailed specifications of the ultimate facts alleged in the indictment.

When the statute makes the selling of property subject to a mortgage lien, 'without the written consent of the person * * * holding such lien,' a crime, evidence as to a verbal consent or acquiescence is ordinarily not admissible in defense.

Where the evidence is admittedly sufficient to sustain the verdict in point of fact, and it is held to be sufficient in law to sustain the conviction, the indictment being legally sufficient, the judgment will be affirmed, no reversible errors appearing.

COUNSEL Price & Carter, of Marinna, for plaintiff in error.

T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

WHITFIELD J.

The indictment herein charges:

'That G. W. Ellis, of the county of Jackson and the state of Florida, on the 1st day of January in the year of our Lord one thousand nine hundred and fourteen in the county and state aforesaid, then and there being, was then and there the owner of one black horse mule named Pete, about six years old, which said mule was then and there on the 1st day of January, A. D. 1916, subject to the lien of a valid written and unpaid mortgage for the sum of $337.36 given by the said G. W. Ellis on March 25, 1914, to L. S. Pender; and that the said G. W. Ellis did then and there being in possession of the said mule, on the 1st day of January, A. D. 1916, sell and dispose of said mule to a person or persons to the grand jurors unknown, without the written consent of him the said L. S. Pender, which he the said L. S. Pender was then and there the owner and holder of said written lien.'

A motion was made to quash the indictment on the following grounds: That the allegations are vague, indefinite, and uncertain, and charge no offense against the laws of Florida, and that the allegation relative to the validity of the lien alleged sets forth no facts showing whether said lien is a valid written lien or not, but alleges an untraversable legal conclusion. The motion was denied. Upon conviction the defendant moved for a new trial on grounds stating that the verdict is contrary to law and contrary to the evidence; that the guilt of the accused is not shown beyond a reasonable doubt, and the court erred in giving the following charge:

'I charge you further that, even though he may have sold the mule with the verbal consent or knowledge on the part of Mr. L. S. Pender, he would still be guilty, because the law provides that it is a criminal offense for it to be sold in that manner, unless there be a written consent by the person who owns the mortgage, and it cannot be cured, gentlemen of the jury, by any verbal consent or by any attempted payment or return of the property afterwards.'

This motion was overruled, and after sentence the accused took writ of error.

The statute on which the indictment is founded is that:

'Whoever shall pledge, mortgage, sell or otherwise dispose of any personal property, to him belonging, or which shall be in his possession, which shall be...