Kirkland v. State

Decision Date20 June 1923
Citation97 So. 502,86 Fla. 64
PartiesKIRKLAND v. STATE.
CourtFlorida Supreme Court

Rehearing Denied Sept. 12, 1923.

Error to Circuit Court, Jackson County; C. L. Wilson, Judge.

John D Kirkland was convicted of embezzlement, and he brings error.

Affirmed.

See also, 97 So. 510.

Syllabus by the Court

SYLLABUS

Foreman not required to sign indictment. The foreman of a grand jury finding an indictment is not required, under the laws of this state, to sign such indictment.

Law requiring presentments for penal offenses signed by foreman of grand jury held not to apply to indictment. The statute (section 6062, Revised General Statutes) requiring all presentments for penal offenses to be signed by the foreman of the grand jury does not apply to an indictment found by such grand jury.

Going to trial on issue of not guilty held waiver of objection that indictment not indorsed 'A true bill.' Where a person is indicted for crime, and, upon arraignment, pleads not guilty, and goes to trial upon the issue joined, he waives the objection that the indictment was not indorsed 'a true bill' as the statute requires.

Motion to quash indictment denied if one count thereof good. Where a motion is made to quash an indictment containing several counts, and one of the counts of the indictment is good, the motion should be denied.

Indictment not quashed as vague and uncertain unless accused misled and embarrassed in his defense, or subject to new prosecution for same offense. Where an indictment is not so vague as to mislead the accused, and embarrass him in the preparation of his defense, nor so undertain as to subject him to the danger of a new prosecution for the same offense, the indictment should not be quashed upon the ground that it is vague and uncertain.

County commissioner intrusted with property belonging to county may commit embezzlement. A county commissioner with whom the board of county commissioners intrust property belonging to the county may commit the offense of embezzlement denounced by section 5152, Revised General Statutes, which provides That 'any state, county or municipal officer who shall 1. Convert to his own use, or who shall 2. Secrete with the intent to convert to his own use, or who shall 3. Withhold with the intent to convert to his own use, (a) any money, property or effects belonging to or in the possession of the state, county, city or town whose duty requires him to receive said public money, property or effects; or (b) any money, property or effects of another, the duty of which officer requires him to receive said money, property or effects, shall in every such act be deemed guilty of an embezzlement of the money, property or effects so converted, secreted or withheld, and shall be punished by imprisonment in the state prison,' etc.

Formal introductory part or caption of indictment need not be repeated in every count. The formal introductory part or caption of an indictment need not be repeated in every count.

Warrant signed by county commissioner in payment of account against county held admissible, where shown that prior warrant in part payment same account misapplied. Under an indictment charging the accused, as county commissioner, with the embezzlement of $325 of the county's money on April 21, it was not error to admit in evidence a county warrant signed by the defendant as chairman of the board, and dated October 12, where the evidence showed that the defendant, as commissioner, obtained a warrant for $325 on April 21 for a bill of lumber, which he approved in favor of the seller of the lumber, and later, in October, a warrant for the entire amount of the bill was, at the defendant's suggestion, drawn in favor of the bank; the evidence tending to show that the first warrant which passed through the defendant's hands and bore his indorsement was not applied to the purpose for which it was drawn.

Board of commissioners may make orders concerning care of property only in legal meeting. The board of county commissioners in legal meeting only, and at no other time, is vested with the power to make orders concerning the care of the county property. The members individually, when not in lawful meeting, have no power as county commissioners.

Minutes of county commissioners best evidence of official acts. The minutes of the board of county commissioners are the best evidence of its official acts.

Rebuttal evidence explaining or contradicting material evidence offered by defendant admissible. Evidence in rebuttal which explains or contradicts material evidence offered by the defendant is admissible.

Charges inapplicable to the evidence are correctly refused. Charges which are inapplicable to the evidence are correctly refused.

Evidence held to sustain conviction. Evidence examined, and found sufficient to sustain the verdict.

Under motion to quash, indictment receives liberal construction. Under Rev. Gen. St. § 6064, under a motion to quash, an indictment receives a liberal construction.

COUNSEL

Paul Carter, of Marianna, Ira A. Hutchison, of Chipley, and Amos Lewis, of Marianna, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

John D. Kirkland was convicted of the crime of embezzlement upon three counts of an indictment containing five counts. Each count charged that he was a county commissioner for Jackson county, and that he converted to his own use money which came into this hands and possession by virtue of his office as county commissioner. The state attorney entered a nolle prosequi as to the first count. A motion to quash the indictment was overruled, and Kirkland, pleading not guilty, was convicted upon the second, third, and fifth counts. The second count charged the embezzlement of $325, the third $240, and the fifth charged the embezzlement of $730.

The evidence as to the charge contained in the first count tended to show that Kirkland, as chairman of the board of county commissioners, contrived through his representations to the board to have two warrants issued to pay for a bill of lumber sold by Chas. Harris. The amount of the bill was $332.20. The first warrant was for $325, dated April 4, 1921, and payable to the order of Chas. Harris. The second was for the sum of $332.20, and payable to the order of the First National Bank of Graceville. The proceeds of the first warrant were obtained by Kirkland, and he returned that amount of money to the county after an investigation and a demand upon him for the same.

It appears that Harris obtained his pay through some arrangement with the bank to which the second warrant was made payable in settlement of the bill.

The evidence as to the charge contained in the third count tended to show that the defendant hired a team of mules and some road machinery belonging to the county to a man in Holmes county to do certain road work for him, and received for the hire of the county property $240, which he failed to deliver to the county.

The evidence as to the charge contained in the fifth count tended to show that certain mules, road machinery, and oils and a quantity of corn, the property of the county, valued at $800 or $900, were converted by the defendant to his own use, some of which, after investigation by the board of county commissioners after the defendant had ceased to be a member of the board, he surrendered to his successor, Mr. Adams, who succeeded Mr. Kirkland in January, 1921. Some of the corn the defendant sold, realizing about $87 for it. One of the county's mules he traded to a negro for another mule for a price to be paid by the negro; two mules the defendant kept in his possession until after investigation and demand upon him for them. The oil, two or three barrels, he made no account of to his successor, and said nothing about it until, after an investigation and demand upon him, he found it in his barn covered with corn. Some road machinery, a trailer, he denied was the property of the county, but afterward admitted that it belonged to the county, and turned it over to his successor. The mules and oil and machinery were recovered by the county.

The evidence adduced by the state was ample, if believed by the jury, to convict the defendant upon the charge of embezzlement. From the evidence adduced the course which the defendant pursued in the exercise of his powers as a county commissioner was one of apparent improbity most simple in character, but disingenuous to a degree. As county commissioner and chairman of the board he was intrusted with certain property of the county utilized by it in road construction, building materials for bridges, road machinery, oils, and mules used in road work, and feedstuff for the mules. To a man of business probity this required at least an account of what was received, what disbursed, and what remained on hand, and a faithful surrender of it to the board when his term of office ended. But the evidence for the state in this case was sufficient to enable the jury to conclude that the defendant neglected system for inefficiency, faithfulness for disingenuousness, and knowingly profited by his sordidly artful and unworthy conduct at the expense of his employer, the county; in other words, that he appropriated property of the county to his own use, and sought to veil his criminal conduct behind an assumed incapacity for detail.

An attack was made upon the indictment by a motion to quash which was overruled, and the attack was renewed after verdict by a motion in arrest of judgment.

Under the motion to quash the indictment it was urged: First, that the indictment was vague and uncertain, and stated no offense against the laws of Florida; second, that it fails to attege that the offense was...

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24 cases
  • Hennigan v. State, 86-82
    • United States
    • United States State Supreme Court of Wyoming
    • 16 Noviembre 1987
    ...indicating that decision is thus acceptable in the absence of some requirement of strict compliance with the statute. Kirkland v. State, 86 Fla. 64, 97 So. 502 (1923). The evidence found in this record is that the indictment was returned in open court in the presence of all jurors; the fore......
  • Whitten v. State
    • United States
    • United States State Supreme Court of Florida
    • 7 Julio 1923
  • Sawyer v. State
    • United States
    • United States State Supreme Court of Florida
    • 29 Junio 1927
    ...to quash, and judgment of conviction was affirmed. See, also, Richardson v. State, 72 Fla. 154, 72 So. 665. In the case of Kirkland v. State, 86 Fla. 64, 97 So. 502, this court held that, where a person is indicted for and upon arraignment pleads not guilty and goes to trial upon the issue ......
  • Rockingham County v. Luten Bridge Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 15 Octubre 1929
    ...measures. 7 R. C. L. 941; 15 C. J. 460; 43 C. J. 497; P. & F. R. Ry. Co. v. Com'rs of Anderson County, 16 Kan. 302; Kirkland v. State, 86 Fla. 84, 97 So. 502. The principle applies to corporations generally, and by the express terms of our statute, as stated above, every county is a corpora......
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