Hartman v. State

• Decision Date: 27 November 1935
• Parties: HARTMAN v. STATE.
• Court: Florida Supreme Court

164 So. 354

121 Fla. 627

HARTMAN v. STATE.

Florida Supreme Court

November 27, 1935

En Banc.

Error to Court of Record, Escambia County; L. L. Fabisinski, Judge.

C. C Hartman was convicted of embezzlement, and he brings error.

Reversed.

COUNSEL J. McHenry Jones, of Pensacola, for plaintiff in error.

Cary D. Landis, Atty. Gen., and Roy Campbell, of Tallahassee, for the state.

OPINION

TERRELL Justice.

Plaintiff in error was informed against, tried, and convicted of the crime of embezzlement in the criminal court of record of Escambia county, pursuant to section 7247, Compiled General Laws of 1927. He was sentenced to serve two years in the state penitentiary and seeks to be relieved of that judgment on writ of error.

The record discloses that plaintiff in error was a stockholder in a company known as the Realty Corporation and that he was the agent of Fisher Rental Agency, Inc., both located in Pensacola. The information charged him with converting to his own use $2500 of the Fisher Rental Agency Inc. The evidence shows that he withdrew $2500 from the Fisher Rental Agency, Inc., and deposited it to the credit of the Realty Corporation.

The first assignment of error is predicated on the discrepancy between the allegata and the probata, the plaintiff in error contending that since the information charges conversion to his own use and the evidence shows at best nothing more than fraudulent disposition, he cannot be legally convicted and punished under such charge and proof.

The information does not charge in the alternative, but is grounded on conversion to his own use. The evidence shows that the plaintiff in error converted funds of the Fisher Rental Agency, Inc., to the credit of the Realty Corporation of which he was an officer, but this does not necessarily mean or prove that he benefited personally by the conversion and the evidence does not show that he benefited by it.

Section 7247, Compiled General Laws of 1927, under which plaintiff in error was tried and convicted, is as follows:

'If any officer, agent, clerk, servant or member of any incorporated company, or if any officer, clerk, servant, agent or member of any co-partnership, society or voluntary association, or if any clerk, agent or servant of any person, embezzles or fraudulently disposes of, or converts to his own use, or takes or secretes with intent so to do anything of value which has been entrusted to him, or has come into his possession, care, custody or control by reason of his office, employment or membership, he shall be punished as if he had been convicted of larceny.'

Under the law as thus quoted, we would not be warranted in holding the information bad, but on account of the variance in the allegata and probata and there being no proof that plaintiff in error profited personally by the conversion, we think the cause should be reversed for a new trial. The statute not only punishes conversion to one's own use, but it punishes for fraudulent disposition or for secreting with intent to convert to the offender's use. The evidence should support the allegata or in this case show conclusively that the defendant profited personally by the conversion.

It was also error to permit the introduction of evidence at the trial of this cause to show that the plaintiff in error was short in his accounts with the Realty Corporation. Such evidence was highly prejudicial unless it...