Frink v. State

• Decision Date: 19 October 1908
• Citation: 56 Fla. 62,47 So. 514
• Parties: FRINK v. STATE.
• Court: Florida Supreme Court

47 So. 514

56 Fla. 62

FRINK v. STATE.

Florida Supreme Court, Division B.

October 19, 1908

Error to Criminal Court of Record, Hillsborough County; Horace C Gordon, Judge.

J. D Frink was convicted of embezzlement, and he beings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

In a criminal case, it is erroneous to charge the jury that 'where the testimony is conflicting, it is your duty to reconcile the same, if possible, but any testimony which you may fail to reconcile, or fail to believe, you have the right to reject.' The jury have no right to reject testimony because they are unable to reconcile it with other testimony irrespective of whether that other testimony carries conviction to their minds beyond a reasonable doubt.

In a trial of a railroad agent for embezzlement, it is erroneous to charge the jury that 'embezzlement is the wrongful conversion of the property of another to one's own use which lawfully came into his possession or care as servant, bailee, or otherwise.' The words 'or otherwise' are not contained in the statute defining the offense for which the defendant in the instant case was prosecuted.

In a trial of a railroad agent for embezzlement, the following language in a charge is erroneous: 'But, where it is the servant's duty to account for and pay over the moneys received by him at stated times, his not doing so willfully is embezzlement.' There is no rule of law which fixes the crime of embezzlement upon an agent simply for want of punctuality in paying over money received by him, and, unless such an agent fraudulently appropriates such money, his tardiness simply in paying it over is not embezzlement.

In the criminal prosecution of a defendant for embezzlement as agent of the Plant City, Arcadia & Gulf Railway and of its money, and there was evidence tending to show that the Seaboard Air Line Railway was during the time of such alleged embezzlement operating the Plant City, Arcadia & Gulf Railway, and was entitled to the money it earned and its profits, it was erroneous for the trial court to refuse to give an instruction requested by the defendant, to the effect that, if the jury had a reasonable doubt in their minds as to whether or not the money alleged to have been embezzled was the money of the Seaboard Air Line Railway, it would be their duty to acquit the defendant.

In a trial for embezzlement, the defendant has a right to introduce evidence of facts which would have a tendency to show he had no criminal intent to fraudulently convert the money of his principal to his own use.

COUNSEL

Wall & McKay, for plaintiff in error.

OPINION

HOCKER J.

On the 4th day of December, 1907, the county solicitor of Hillsborough county filed an information against J. D. Frink, the plaintiff in error, containing three counts. The first count charges the plaintiff with the embezzlement in Hillsborough county of $700 on the 1st of August, 1906, of the money of the Plant City, Arcadia & Gulf Railway, a corporation, which he received by reason of his employment as agent and servant of said corporation, alleging that he did then and there unlawfully and feloniously convert the said money to his own use. The second and third counts are like the first, except that the date of the embezzlement is fixed on the 1st of January, A. D. 1907, in the second count, and the 1st day of May, 1907, is the date alleged in the third count. On the trial, concluded on the 7th of December, 1907, the jury brought in a verdict of guilty of 'grand embezzlement,' and the plaintiff was sentenced to the state prison for five years. This judgment is here for review on writ of error.

It was shown by the testimony of Hon. P. O. Knight, a state's witness, that the Plant City, Arcadia & Gulf Railway is a corporation organized under the laws of this state; that the railway commences at Plant City and is completed to Welcome, all in Hillsborough county, except a spur extending to Memminger's Phosphate plant, in Polk county. The line is about 18 miles in length. The principal office is in Plant City. The railroad changed ownership about the latter part of July, 1906, and the new purchasers retained the plaintiff as agent of the company. He was the agent of the company under its previous ownership.

Mr. Knight explains that what he meant by 'changing ownership' is that the stock of the company was purchased, and that as a matter of fact all the stock, except four shares, is in his name. Mr. Knight disclaims being a trustee, and says: 'I really appear to be the owner of it when in fact I am not. I do not know whom the real owners are--I imagine.' He further says he is the president, secretary, treasurer, and attorney of the road. No money is remitted to him, but all money is supposed to be remitted to comptroller's and treasurer's office of the Seaboard Air Line at Portsmouth, Va., and that the Seaboard operates the road. The purchase money of the stock was furnished to Mr. Knight by men connected with the Seaboard Air Line Railroad. When the road was purchased by Mr. Mckenize as representative of the comptroller's office at Portsmouth, he, as representative of the Seaboard Air Line, came here and took charge of the road, and put Mr. Frink, the plaintiff, in charge of it. Mr. Knight further says that all the moneys and assets and profits from the operation of this road were turned over to the Seaboard as appointees of the Plant City, Arcadia & Gulf Railroad. The treasurer of the Seaboard draws out the money of the Plant City, Arcadia & Gulf Railroad, which is all remitted to the Exchange National Bank of 'this city' (Tampa). The accounts are kept separate. So far as we can understand from the testimony in this case, it does not appear that the Plant City, Arcadia & Gulf Railway was the owner of or entitled to $1 arising from the operation of the said railway.

Mr. McKenzie, assistant to the comptroller of the Seaboard Air Line Railway, came down from Portsmouth, and checked up Mr. Frink at the time the ownership of the Plant City, Arcadia & Gulf changed. He then found Frink's accounts all right. He started him off as agent under the new management, and instructed him as to making his freight and ticket receipts, and furnished him with the necessary blanks, and instructed him to make daily remittances when they amounted to $5 or over to the Exchange National Bank of Tampa. He says Frink's duties were to make his reports, to collect for freight charges and ticket sales, and to make freight reports four times a month, and ticket sale reports once a month, and a monthly balance sheet.

It appears from the evidence that there were 10 stations along this road (Plant City, Arcadia & Gulf) where freight and passengers were received and discharged. Waybills were made out for freight to these different places. Frink really was a sort of manager of this road, and...