Hopkins v. State

Decision Date03 August 1906
Citation42 So. 52,52 Fla. 39
CourtFlorida Supreme Court

Headnotes Filed Oct. 11, 1906.

Error to Circuit Court, St. Johns County; Rhydon M. Call, Judge.

Harry Hopkins was convicted of embezzlement, and brings error. Affirmed.

Syllabus by the Court


Where a continuance was asked for on two grounds--first, that the defendant was too sick to go into a trial; and, second, that his leading attorney was necessarily absent on account of sickness--and it appears that he had been sick with malarial fever previous to the trial, but there is nothing to show that he was ill at the time of the trial, and it does appear from his testimony that he had the full possession of his faculties, and that he was represented by three attorneys the refusal of the continuance presents no ground for a reversal.

It is not necessary, in a criminal case, for the venue to be proven beyond a reasonable doubt; and where the crime charged is embezzlement, and the evidence shows that the property came into the possession and custody of a baggage master of a railroad on a run beginning in Duval county and ending in St Johns county, and was appropriated by him on this run, and the jury could reasonably conclude from the evidence that the baggage master had the property in his possession in St Johns county, where it was his duty to deliver it when he completed his run, he was properly indicted and convicted in St. Johns county.

Where the records of a railroad company are made in duplicate or triplicate, they are each primary evidence of their contents and each is admissible in evidence without producing the others or accounting for their absence.

Proof of handwriting is a matter of opinion, and where a witness identified a signature as that of the defendant, and subsequently testified that he had seen the defendant write his name, and the signature looked like his, no error is committed in permitting this evidence to go to the jury.

General objections to questions put to witnesses will not be considered on appeal, unless the evidence sought is palpably prejudicial, improper, and inadmissible for any purpose or under any circumstances.

Alleged errors in giving or refusing charges or instructions, and in the admission or rejection of testimony, which do not weaken the effect of the admitted 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.

In a criminal prosecution of a baggage master of a railroad company for embezzlement of the property of a passenger intrusted to such baggage master for delivery at the destination of the passenger, all the members of the court are of opinion that it is the better practice for the trial court to excuse from the jury the employés of the railroad company, but the members of the court are equally divided in opinion as to whether the trial court can be held in error for refusing so to do, and the question is, therefore, not decided.


Pope & Pope, for plaintiff in error.

W. H. Ellis, Atty. Gen., and Alex St. Clair-Abrams, for the State.



At a special term of the circuit court of St. Johns county held in January, 1906, Herry Hopkins was indicted by the grand jury. The indictment contained three counts: The first count charges him with the larceny of one scarf pin, head of goddess, with crown set in brilliants, of the vale of $50, one scarf pin, small sapphire pin set with a ruby, diamond, and other stones, of the value of $50, and one pair diamond cuff buttons, of the value of $25, of the property, goods, and chattels of the East Coast Railway Company. The second count charges the larceny of the above property and one other scarf pin of the value of $50, total value $175, of the property of A. W. Masters, then and there in the possession of the East Coast Railway Company. The third count charges Hopkins with the embezzlement of the property described in the second count, alleging that he was the servant and baggage master of the said railway company, and that by virtue of his employment he came into the care, custody, control, and possession of a trunk which contained the above-mentioned articles, the property of the said railway company, and of the value as set forth. The indictment charges these offenses to have been committed on the 4th of March, 1905, in St. Johns county, Fla. The foregoing is the substance of the charges set out in full in the indictment. The case was tried on the 5th of February, 1906. The plaintiff in error was convicted generally, and sentenced to the penitentiary for the term of five years. He seeks to reverse this judgment on writ of error.

A motion was made by the Attorney General to strike the bill of exceptions because of a failure to comply with rule 103 of the rules of 1873, or with special rules 1, 2 and 3 of the rules of 1905 (37 South. v), in its preparation. The bill of exceptions containing the proceedings on the trial is very inartificially prepared and seems to be nothing more than a copy of the stenographer's notes of the trial. Very many of the objections and exceptions to various rulings of the court are entirely too general to permit us to give them any critical examination according to the established rules of this and other courts. But there are some matters contained therein which we may fairly consider, so far as they are properly assigned as error and argued in the briefs, and for that reason the motion to strike the bill of exceptions is denied.

The first assignment of error presented is based on the refusal of the court to grant an application for a continuance, based on two grounds: First, that the defendant was too sick to go into a trial; and, second, that this leading attorney, Mr. Pope, was sick and absent at Hot Springs, Ark. As to the first, it appears that Hopkins had been quite ill with malarial fever, and had not entirely recovered from the effects of his sickness at the time of his trial, but there is nothing to show that he was too ill to go into the trial on the 5th of February. He did go into and through with it, and his testimony evinces that he had the full possession of his faculties and that he presented his defense with more than ordinary ability and astuteness. He was defended by three able lawyers, in a manner that shows he lacked nothing which legal acumen could do in his behalf. The record discloses nothing which supports the contention that he was in any way prejudiced or his rights jeopardized by the refusal to grant a continuance, and we find no error in the ruling.

The next assignment argued is that no venue was proven. The contention is that, if a larceny or embezzlement was proven the offense was proven to have occurred in Duval county, and not in St. Johns. The facts, summarily stated, are that Hopkins was the baggage master of the East Coast Railway Company, making two trips a day from St. Augustine, in St. Johns county, to Jacksonville, in Duval county, and back again. On the 3d of March, 1905, the train left St. Augustine for Jacksonville in the morning about 9 o'clock a. m., and left Jacksonville on the return trip at 9:55 a. m., and arrived at St. Augustine at 10:55 a. m. This train was numbered 27. The same train left St. Augustine at 6:10 p. m., and arrived at Jacksonville at 7:32 p. m., and was numbered 30. The same conductor ran on both trains, and the same baggage master, the defendant, Hopkins. Baggage from the North for St. Augustine was delivered to Hopkins at Jacksonville. He had no assistant in the baggage car. It was his duty to deliver the trunks and their contents which came into his possession as baggage master, in St. Augustine, in good order. A. W. Masters checked his trunk at Atlanta, Ga., on the 2d of March, 1905, for St. Augustine. The trunk was in good order. It was received by Hopkins on the morning of March 3, 1906, at Jacksonville, in good order. It was delivered by Hopkins at the station in St. Augustine in apparent good order, and then delivered to Masters about noon on the 3d of March, 1905, at the Ponce de Leon Hotel in apparent good order. Masters testified that the jewelry described in the indictment was placed by him in a box in the tray of the trunk at Birmingham, Ala., as he was starting for St. Augustine, and that when he unlocked the trunk at the hotel, about noon on the said 3d of March, 1905, the jewelry was gone. Mr. Masters informed the railroad officials of his loss, and described the property so accurately to them that they were able to identify it by the description when they found it, as appears from the testimony of Sabaty. An investigation was instituted, and it was discovered that Hopkins had sent a package by express from Jacksonville to his mother at Carters, Fla. (Polk county), on the night of 3d of March, 1905, some time after 7 o'clock p. m. The package arrived at Carters on the 4th of March, and was delivered to Mr. Hopkins, the father of defendant, who signed the receipt for his wife. The evidence shows that no other package was sent by express to them between the 3d of February and the 4th of June, 1905. Detectives of the railroad company went to Carters, Fla., for the purpose of getting the contents of the package. After they had started Hopkins telegraphed his father at Carters, as follows: 'St. Augustine, Florida, 4-22 (meaning April 22), 1905. Mr. Ed. H. Hopkins, Carters, Florida. Arrested charge having stolen two pearl studs one diamond stick pin. Men coming to search house. You know what to do. Act at once. [Signed] Son Harry.' The telegram did not arrive at Carters until after the detectives had reached that place and Mr. and Mrs. Hopkins had turned...

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    ... ... the effect of the admitted 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. Hopkins v ... State, 52 Fla. 39, 42 So. 52 ... [85 ... Fla. 364] Where no fundamental rights have been violated, and ... the evidence of guilt is amply sufficient, technical errors ... in rulings on the admission of testimony or in giving or ... refusing charges will not cause a ... ...
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