Fouts v. State
| Decision Date | 24 March 1931 |
| Citation | 101 Fla. 1248,133 So. 81 |
| Parties | FOUTS v. STATE. |
| Court | Florida Supreme Court |
Error to Criminal Court of Record, Polk County; W. M. Murphy Judge.
John L Fouts was convicted of embezzlement, and he brings error.
Affirmed.
Syllabus by the Court.
A count of an information which is couched in the exact language of section 7249(5148), Compiled General Laws of Florida 1927, is not bad for failure to allege that the fraudulent conversion was committed with an intent to defraud.
An information for embezzlement which charges the offense substantially in the language of section 7249(5148), Compiled General Laws of Florida 1927, is sufficient.
After all of the evidence of the parties shall have been submitted in a criminal case, the court should not direct a verdict for the defendant, unless it be apparent to the judge of the court that no sufficient evidence has been submitted upon which the jury could legally find a verdict for the opposite party.
In a prosecution for embezzlement where the evidence clearly shows that the defendant in good faith and without secrecy or concealment retained the property involved under a bona fide claim of right based upon reasonable grounds, however ill founded the defendant's claim may have been under the circumstances shown by the evidence, his action does not constitute the crime of embezzlement under section 7249(5148), Compiled General Laws of Florida 1927.
In a prosecution for embezzlement, the question whether the defendant in good faith and without secrecy or concealment retained the property involved under a bona fide claim of right based upon reasonable grounds, is one of fact, to be considered by the jury in connection with all the other facts and circumstances submitted to them in the trial of the case.
Alleged errors in the admission or rejection of testimony which do not weaken the admitted effect of the testimony and which do not reach the legality of the trial itself will not be considered grounds for reversal, where the evidence leaves no room for reasonable doubt of the defendant's guilt.
While it is the duty of the trial judge, whether requested or not to check improper remarks of counsel to the jury and to seek by proper instructions to the jury to remove any prejudicial effect they may be calculated to have against the opposite party, the general rule is that where the remarks do not appear to be such that neither rebuke nor retraction will entirely destroy their sinister effect, a verdict will not be set aside by an appellate court because of such remarks or because of any omission of the judge to perform his duty in the matter, unless objection is made at the time of their utterance and a ruling of the court secured thereon and an exception to such ruling duly taken.
A judgment should not be reversed or new trial granted on the ground that the verdict is not sustained by the evidence, unless it appears that there was no substantial evidence to support the finding or that upon the whole evidence the verdict is clearly wrong, or that the jury were not governed by the evidence in making their finding.
Johnson, Bosarge & Allen, of Bartow, for plaintiff in error.
Fred H. Davis, Atty. Gen., and Roy Compbell, Asst. Atty. Gen., for the State.
Plaintiff in error, hereinafter referred to as the defendant, was convicted on the first count of an information charging he did on the 17th day of October, in the year A. D. 1928, in Polk county, Fla., fraudulently convert to his own use $10,000 lawful money of the United States belonging to and in possession of the First State Bank of Winter Haven, Fla., a more specific description being unknown to the county solicitor; that at the time of the fraudulent conversion John L. Fouts was president of the State Bank of Winter Haven, Fla., an incorporated bank, organized and existing under the laws of the state of Florida.
The defendant filed a motion to quash the information. Error is first predicated on the denial of this motion.
It is insisted the count upon which conviction was had should have charged that the alleged fraudulent conversion was committed with an intent to defraud the bank. This count was couched in the exact language of the statute, section 7249(5148), Compiled General Laws of Florida 1927.
An information for embezzlement which charges the offense substantially in the language of section 7249(5148), Compiled General Laws of Florida 1927, is sufficient. Crawford v. State, 93 Fla. 1082, 113 So. 90; Thalheim v. State, 38 Fla. 169, 20 So. 938; Teston v. State, 50 Fla. 137, 39 So. 787; Lake v. State (Fla.) 129 So. 832.
The second, seventh, eighth, and eleventh assignments of error are not argued and appear to have been abandoned.
The third assignment is based upon the action of the court in overruling defendant's motion for an instructed verdict of not guilty at the conclusion of all of the evidence in the case.
In support of this assignment, it is contended that inasmuch as the defendant's defense in this case was based solely on the fact that the bank was indebted to him and the defendant had taken the stand and shown that there was an indebtedness existing between the bank and himself, and his testimony was corroborated by testimony of other witnesses, and the state did not attempt to rebut the testimony of the defense that there was in fact a debtor and creditor relationship existing between the defendant and the bank, the court should have instructed the jury to render a verdict in favor of the defendant.
After all of the evidence of the parties shall have been submitted in a criminal case, the court should not direct a verdict for the defendant, unless it be apparent to the judge of the court that no sufficient evidence has been submitted upon which the jury could legally find a verdict for the opposite party. Section 4363(2696), Compiled General Laws of Florida 1927.
We have held that in a prosecution for embezzlement where the evidence clearly shows that the defendant in good faith and without secrecy or concealment retained the property involved under a bona fide claim of right based upon reasonable grounds, however ill founded the defendant's claim may have been under the circumstances shown by the evidence, his action does not constitute the crime of embezzlement under section 7247(5146), Compiled General Laws of Florida 1927, and the same rule would apply under section 7249(5148). Compiled General Laws of Florida 1927. Brown v. State, 92 Fla. 538, 109 So. 438; Eatman v. State, 48 Fla. 21, 37...
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Peel v. State
...of such remarks unless objection is made at the time of their utterance and a ruling of the court secured thereon. See Fouts v. State, 1931, 101 Fla. 1248, 133 So. 81; Livingston v. State, 1939, 140 Fla. 749, 192 So. 327; Higginbotham v. State, 1944, 155 Fla. 274, 19 So.2d 829; and Tillman ......
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...which the remarks called forth; and they must have been harmful in their effects to the cause of the defendant.' See, also, Fouts v. State, 101 Fla. 1248, 133 So. 81. McCall v. State, 120 Fla. 707, 163 So. 38, 45, we said: 'Now, it is true that the trial judge did what he could to correct t......
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...unless it is apparent that no legally sufficient evidence has been submitted upon which a jury could find otherwise. Fouts v. State, 101 Fla. 1248, 133 So. 81 (1931); Stalnaker v. State, 133 Fla. 671, 183 So. 294 (1938). There was, in this case, sufficient evidence of perjury to warrant the......
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