Grant v. State

• Decision Date: 05 April 1895
• Parties: GRANT v. STATE.
• Court: Florida Supreme Court

17 So. 225

35 Fla. 581

GRANT v. STATE.

Florida Supreme Court

April 5, 1895

Error to circuit court, Suwannee county; John F. White, Judge.

Daniel F. Grant, having been convicted of embezzlement, brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An indictment for embezzlement, in which the only description of the property alleged to have been fraudulently converted is that it was 'the proceeds' of certain lumber sold by the defendant, is wholly insufficient. The general rule is that such an indictment should state the description of the property embezzled with the same particularity as is required in an indictment for larceny.

2. If it is impossible in an indictment for embezzlement to give a very exact description of the property embezzled, the best description practicable should be given; and, if the description is indefinite, a reason for not giving a better description should be stated.

3. The omission, in an indictment for embezzlement, to describe the property alleged to have been embezzled, is a fatal objection at any stage of the case the same may be presented, including a motion in arrest of judgment.

4. In an indictment for embezzlement, the receipt by the defendant of the property alleged to have been embezzled should be directly and positively alleged. An indictment which only alleges that the defendant sold certain lumber, and converted the proceeds thereof to his own use, is not equivalent to an averment that the proceeds of the sale of the lumber came to his hands.

5. In an indictment for embezzlement, the ownership of the property alleged to have been embezzled should be alleged with the same particularity as in an indictment for larceny.

6. In an indictment for embezzlement, an allegation that the fraudulent conversion of the proceeds of the property by the defendant injured the bailors in the sum of $170 is not an allegation of the value of the property embezzled. Such an allegation is only useful in showing the amount of damages claimed in a civil proceeding.

7. In an indictment for embezzlement, it is especially necessary under our statute to state the value of the property alleged to have been embezzled, because the statute provides that upon a conviction for this offense the defendant shall be punished as if he had been convicted of larceny. We have two different grades of larceny, as regulated by the value of the property stolen, over which the circuit court has jurisdiction, and for which different degrees of punishment are provided; therefore the value of the property should be stated, in order to ascertain the penalty proper to be inflicted.

COUNSEL A. J. Henry, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

LIDDON J.

The plaintiff in error was convicted in the circuit court upon an indictment charging 'that Daniel F. Grant, late of said county lawyer, on the 30th day of June, A. D. 1891, at and in the county, circuit, and state aforesaid, was then and there intrusted by Frank M. Bell and T. C. Glover with a large amount of property, which was then and there subject of larceny, to wit, thirty thousand feet of yellow pine lumber [giving a detailed description of the dimensions of the said lumber]; and the said Daniel F. Grant was so intrusted as aforesaid with the lumber aforesaid by the said Frank M. Bell and T. C. Glover for the purpose of shipping and selling the same, and having the proceeds thereof remitted to them, the said Frank M. Bell and T. C. Glover and the said Daniel F. Grant did afterwards sell the said lumber, with the consent of the said Frank M. Bell and T. C Glover; and after the sale aforesaid did, without the consent of the said Frank M. Bell and T. C. Glover, fraudulently convert the proceeds thereof to his own use, and fail and refuse to poay the same over to the said Frank M. Bell and T. C. Glover on demand, to the injury of the said Frank M. Bell and the said T. C. Glover in the sum of one hundred and seventy dollars. So the jurors aforesaid, upon their oath aforesaid, do say that the said Daniel F. Grant, at the time aforesaid, and in the county, circuit, and state aforesaid, did commit the crime of fraudulent conversion of property, contrary to the laws,' etc.

The jury rendered a verdict finding the defendant guilty of the fraudulent conversion of $49 of the money set forth in the indictment, and recommended him to the mercy of the court. The counsel for defendant moved an arrest of judgment upon numerous grounds. Included in said grounds, among many others, are: (1) That the indictment was vague, indefinite, and insufficient, and did not charge any offense; (2) that it did not allege the ownership or value of the property alleged to have been fraudulently converted by the defendant. The court overruled the motion, and imposed a penalty upon the defendant.

We think the objections stated above were good ones, and the motion to arrest the judgment should have been granted. As to the first objection, the indictment is exceedingly vague and indefinite. It was found under the statute (section 2454 of the Revised Statutes of Florida). Leaving out those portions of the section not applicable to the present case, the pertinent portions in question would read as follows: 'If * * * any * * * person with whom any property which may be the subject of larceny is entrusted or deposited by another, * * * after a sale of any of said property with the consent of the owner or bailor shall fraudulently and without consent aforesaid convert or embezzle the proceeds, or any part thereof,...