King v. State

• Decision Date: 09 April 1901
• Citation: 31 So. 254,43 Fla. 211
• Parties: KING v. STATE.
• Court: Florida Supreme Court

31 So. 254

43 Fla. 211

KING v. STATE.

Florida Supreme Court

April 9, 1901

Error to circuit court, Gadsden county; John W. Malone, Judge.

Edgar H. King was convicted of forgery, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An allegation in an indictment for forgery to the effect that the defendant 'did falsely make, forge, and counterfeit a certain false, forged, and counterfeit writing,' etc should not, on a motion to quash, be construed to mean that the defendant falsely made and forged an already existent document that was itself a false and forged instrument, but it should receive the more liberal construction, as meaning that the defendant did falsely make and forge the instrument as his own original creation, and that when so made by him it was a false, forged, and counterfeit writing. The form of the allegation quoted is open to the criticism of being tautologous, but does not for that reason vitiate the indictment.

2. A mere brutum fulmen, on its face utterly valueless, and of no binding force or efficacy for any purpose of harm, liability or injury to any one, cannot be the subject of forgery. In order to be the subject of forgery, the instrument forged must be upon its face, were it genuine, of some apparent legal efficacy for injury to another, or, as Mr. Wharton expresses it, 'should be one which would expose another to legal process.'

3. Though the instrument forged purports upon its face to grant an estate in land for a term of more than two years, but is invalid and ineffectual as a lease for such term because it is witnessed by only one witness, when the statute requires two to give it effectiveness as such, yet if the instrument were it genuine, could be specifically enforced in equity as a contract for a lease, or if it was effective as a license to make entry upon the land described therein, so as to shield parties entering under it from the charge of trespass it is not an absolute nullity, but is effective for injury to another, and is therefore the subject of forgery.

4. Section 1354, Rev. St., authorizing circuit judges to appoint a prosecuting attorney from among the members of the bar whenever the official state attorney is absent from any regular or special term of court, etc., and requiring such appointee to be sworn faithfully to discharge the duties of state attorney, does not conflict with section 27 of article 3 of the constitution of 1885, which requires that the legislature shall provide for the election by the people or appointment by the governor of all state and county officers not otherwise provided for by the constitution. Such statute does not contemplate the filling of a vacancy in the office, but the exigency intended to be met by it presupposes that the office is already filled by an incumbent officer, or will be filled in the constitutional way, and it undertakes simply to supply a competent person temporarily to perform the official duties of that office. Even in the absence of such a statute, trial courts with criminal jurisdiction have an inherent power, in the exercise of such jurisdiction, to appoint some suitable person to represent the interests of the state temporarily during the absence or inability to act of the officer whose official duty it is to so represent the state's interests.

5. At the common law, to be the privately retained counsel for the prosecuting private individual was not recognized as a disqualification of such attorney for conducting the prosecution on behalf of the crown. Section 1354, Rev. St., providing for the appointment by circuit judges of temporary acting state attorneys, does not prescribe any other qualification or disqualification for such temporary prosecutor than that he shall be a member of the bar; and if he has been duly sworn as such acting state attorney, as provided by the statute, the fact that he may have been privately retained by the prosecuting witnesses to prosecute the case does not render him ineligible to represent the interests of the state in such prosecution in the capacity of acting state attorney, nor will it vitiate an indictment signed by him as such acting state attorney.

6. Under an indictment charging simply forgery, no conviction for utterance of the forged document can be had.

7. Where refusals to give two or more separate instructions containing distinct propositions of law are embraced in one general exception, the exception thus taken is not available before the appellate court if any one of such charges was properly refused.

COUNSEL M. D. Price, for plaintiff in error.

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

OPINION

TAYLOR C.J.

Edgar H. King, the plaintiff in error, on the 10th day of April, 1900, in the circuit court for Gadsden county, was indicted for forgery, as follows: 'In the Name and by the Authority of the State of Florida. In the Circuit Court of the Second Judicial Circuit of the State of Florida, for Gadsden County, at the Spring Term Thereof, in the Year of Our Lord 1900, Gadsden County, to wit: The grand jurors of the state of Florida, inquiring in and for the body of the county of Gadsden, upon their oaths do present that Edgar H. King and W. B. McMillan, late of the county of Gadsden aforesaid, in the circuit and state aforesaid, laborers, on the 10th day of October in the year of our Lord 1899, with force and arms, at and in the county of Gadsden aforesaid, feloniously did falsely make, forge, and counterfeit a certain false, forged, and counterfeit writing obligatory, to wit, a lease of lands in said county of Gadsden and state of Florida, and which said false, forged, and counterfeit writing obligatory is of the following tenor; that is to say:

"State of Florida, Gadsden County. This agreement made this 10th day of October, 1899, between Judge Trogden, parties of the first part, and W. B. McMillan, parties of the second part, witnesseth: That, for and in consideration of certain agreements herein contained to be performed by the said party of the second part, the said party of the first part grant unto the said party of the second part, his heirs and assigns, the right to enter upon certain lands hereinafter described, to use said lands, together with pine trees growing thereon, for turpentine purposes; the right to cut, chip, and box all of the trees on said lands available for turpentine purposes. It is further agreed and covenanted that the said party of the second part, his heirs and assigns, shall have and exercise all the rights of ownership as to said lands for the management of his business; the right to cut, make, and use roads through said lands whenever needed; to dig wells wherever necessary; to erect such buildings as still houses or other houses as may be needed; to use such timber as may be required for boards or staves; to have all right to do such acts as may be necessary for the convenient management of said business, as such business is usually conducted. Said parties of the first part hereby declare that they are the lawful owners of said lands and trees, and that there is no lien nor incumbrance on same; that they are located in the county of Gadsden, state of Fla., and described as follows: S.E. 1/4 of N.E. 1/4 Sec. 15, W. 1/2 S.W. 1/4 Sec. 17, N.E. 1/4 of N.E. 1/4 Sec. 23, E. 1/2 of N.E. 1/4 Sec. 28, S. 1/2 of S.E. 1/4 Sec. 31, N.W. 1/4 of S.E. 1/4 & N.E. 1/4 of N.E. 1/4 of Sec. 31, W. 1/2 of S.W. 1/4 Sec. 31, N.E. 1/4 of N.E. 1/4, all in T. 3, R. 6, N. & W. This lease is to continue for a term of three years, beginning from the date of boxing the trees; and it is hereby agreed and understood that the date of entering upon said lands and boxing said trees is to be determined by said party of the second part, his heirs and assigns. The said party of the second part agrees to pay for said lease as follows: $10.00 cash, and the balance when boxes are cut, at the rate of $12.50 per thousand boxes.

"In witness whereof, said parties have hereunto set their hands and seals this the day and year first above written as the date hereof.

"Judge Trogden. [Seal.]

"Witness: E. H. King. [Internal revenue stamp, 50c.]

"State of Florida, County of Gadsden. For value received, I hereby assign, transfer, set over, and convey unto Gulf Naval Stores Company, its successors and assigns, all my right, title, interest, and estate in and to the within lease, and all benefit to be derived therefrom. This Oct. day of 21, A. D. 9, -----.

"W. B. McMillan. [Seal.]

"Signed, sealed, and delivered in presence of J. D. McDougald.'

--With intent then and there thereby to injure and defraud the Gulf Naval Stores Company, a Florida corporation, and the Aspalaga Naval Stores Company, a company composed of W. B. Roddenberry, W. J. Singletary, and J. D. Russ. Against the form of the statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the state of Florida. W. H. Ellis, Acting State's Attorney for the Second Judicial Circuit of the State of Florida, Prosecuting for said State.'

Upon this indictment the plaintiff in error was alone tried and convicted in April, 1900, and sentenced to two years' confinement in the penitentiary, and from such sentence takes writ of error.

The first assignment of error is that the court erred in denying the defendant's motion to quash the indictment. This motion was upon the following grounds:

'(1) Because said indictment is vague, indefinite, and uncertain, and charges no offense against the laws of the state of Florida.

'(2) Because said indictment merely alleges a conclusion of law, and does not set forth sufficient facts to inform this defendant of what he is charged.

'(3) Because said indictment fails to

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