Finlay v. State

• Decision Date: 19 February 1943
• Citation: 12 So.2d 112,152 Fla. 396
• Parties: FINLAY v. STATE.
• Court: Florida Supreme Court

12 So.2d 112

152 Fla. 396

FINLAY v. STATE.

Florida Supreme Court

February 19, 1943

Appeal from Court of Record, Escambia County; Ernest E mason, judge.

Philip D Beall, of Pensacola, for appellant.

J. Tom Watson, Atty. Gen., Woodrow M. Melvin, Asst. Atty. Gen., and Forsyth Caro, State Atty., of Pensacola, for appellee.

THOMAS, Justice.

The appellant and a confederate were convicted of obtaining money under false pretenses, a crime denounced by Section 7258, C.G.L.1927(section 817.01, Florida Statutes, 1941).

Inasmuch as the questions presented for decision by the Court challenge the sufficiency of the evidence to establish 'a false representation of a past or present existing fact' and question the propriety of the Court's denial of two instructions bearing out that theory we will, at the outset give a brief history of the transaction which gave rise to this prosecution.

The appellant and his companion entered into an agreement with Women's Benefit Association, a civic organization, providing for the 'sale' by the former to the citizens of Pensacola of books containing stamps of various denominations.One-fourth of the receipts was to be remitted to the association to be used in purchasing equipment for a hospital for tuberculars and three-fourths were to be retained by the appellant and his companion to pay for their services and to defray the costs of the enterprise.The stamp books were to

be delivered by the association to the two defendants from time to time as their supply became diminished from sales so that the sponsor could keep accurate account of the receipts.To carry out the plan the appellant and his associate employed young boys to deliver the books to purchasers interviewed over the telephone.

In furtherance of this apparently laudable project many sales were made but we will confine our observations and discussions to the transaction between the appellant and a man from whom he was charged with having obtained money in violation of the statute.He called the prospective donor on the telephone gave an assumed name, stated that the hospital was much in need of a food conveyor and asked him to buy one of the books, giving the assurance that all of the money paid for it would be expended for this worthy purpose.The person called remarked that he would not contribute if any of the money was to be used otherwise.He was told by the appellant that all services, including those of the messengers, were being donated and that money was being collected in this manner under the sponsorship of the Women's Benefit Association.When the appellant gave the assumed name over the telephone he added 'of the Naval Air Station.'Not only was the appellant's statement about his services without charge untrue, but the messengers were actually receiving compensation for their errands.Evidently, his connection with the air station was fictitious.

The State's version of the affair as we have related it in brief was disputed by the defendants who offered no testimony, save their own, but there was ample evidence to convince the jury that this was the correct account of what transpired.

In a decision of this court, Clifton v. State,76 Fla. 244, 79 So 707, the following elements of the crime of obtaining property by false pretenses were enumerated: (1) false representation of a past or existing fact; (2) knowledge of its falsity; (3) intent to defraud; (4) reliance on the misstatement by the other party; and (5) surrender by the other party of property because of the representation.From our study of the record in this case the last three ingredients were well proven and there is no need for us to...