Lake v. State

• Decision Date: 29 July 1930
• Citation: 129 So. 832,100 Fla. 370
• Parties: LAKE v. STATE.
• Court: Florida Supreme Court

129 So. 832

100 Fla. 370

LAKE v. STATE.

Florida Supreme Court

July 29, 1930

En Banc.

Error to Circuit Court, Seminole County; De Witt T. Gray, Judge.

Forrest Lake was convicted of embezzlement and misapplication of the moneys, funds, and credits of a bank, and he brings error. on petition for rehearing.

Reversed for a new trial.

See also 129 So. 833, 834.

COUNSEL Dickenson & Lake, of Tampa, for plaintiff in error.

Fred H Davis, Atty. Gen., and M. B. Smith, State Atty., of Titusville, for the State.

OPINION

PER CURIAM.

Forrest Lake, the plaintiff in error, was indicted in Seminole county in February, 1928; the first count of the indictment charging embezzlement of, and the second count charging misapplication of, the money funds and credits of Seminole County Bank. He was tried and convicted on both counts and sentenced to a term of three years in the state penitentiary on each count both sentences to run concurrently. He is here seeking to reverse the judgment on writ of error.

The question of whether or not the state can ask for a rehearing in a criminal case, and whether or not the trial court erred in sustaining the state's demurrer to the defendant's plea in abatement, were fully covered in Forrest Lake v State, Indictment No. 9, filed this date, 129 So. 827, and what was there said disposes of those questions in this case.

Error is also predicated on the order of the trial court overruling defendant's motion to quash the indictment.

A motion to quash goes to matter on the face of the indictment. Before it will be granted it must be shown that its subject-matter is so devoid of merit that no judgment can be given upon it, or that it is so vague and indefinite as to mislead or embarrass the accused in his defense, or that it will subject him to a new prosecution for the same offense. Wolf v. State, 72 Fla. 572, 73 So. 740; Clark v State, 68 Fla. 433, 67 So. 135; section 6064, Revised General Statutes of 1920 (section 8369, Compiled General Laws of 1927).

The motion to quash charges that the indictment does not allege that the 'City of Sanford's coupon account' was an account on the books of the said bank, nor that the 'City of Sanford's coupon account' was not charged and withdrawn with the knowledge or consent of the city.

It is true that the indictment does not directly allege that there was an account in Seminole County Bank known as 'City of Sanford's coupon account,' but it does allege that the defendant 'transferred a credit from the account of the City of Sanford's coupon account,' and we think that was sufficient. As to the second charge, that the account was not changed or withdrawn with the knowledge or consent of the city, we think the indictment was good against this assault because it alleges that the transfer was made 'knowingly, fraudulently, and willfully, with intent to injure and defraud the Seminole County Bank, without the knowledge and consent of the said banking corporation.' An examination of the indictment and the statute under which it is cast, section 5150, Revised General Statutes of 1920 (section 7251, Compiled General Laws of 1927), discloses that it charges the offense substantially in the language of the statute, and that is sufficient. United States v. Northway, 120 U.S. 327, 7 S.Ct 580, 30 L.Ed. 664; Evans v. United States, 153 U.S. 14 S.Ct. 934, 939, 38 L.Ed. 830; United States v. Harper (C. C.) 33 F. 471, Text 478; ...