Lewis v. State
| Citation | 55 Fla. 54,45 So. 998 |
| Parties | LEWIS v. STATE. |
| Decision Date | 25 February 1908 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Walton County; J. Emmet Wolfe, Judge.
Andrew Lewis was convicted of embezzlement, and he brings error. Affirmed.
Syllabus by the Court
A count in an indictment for embezzlement found under section 3311 of the General Statutes of 1906, which describes the property alleged to have been embezzled by the accused as 'fifty dollars, good and lawful money, currency of the United States of America, a better description of said money being to the grand jurors unknown, that the said money was then and there the property of' a certain designated person 'and was of the value of fifty dollars,' sufficiently describes the property to withstand an attack made by a motion to quash upon that ground.
A count in an indictment for embezzlement found under section 3311 of the General Statutes of 1906, which charges that the property alleged to have been embezzled had come into the custody and control of the accused 'by reason and by virtue of his being the agent and servant of' a certain designated person, is not open to attack by a motion to quash because it fails to 'allege in what capacity the defendant was acting as agent and servant in this connection.' Such statute prescribes the same penalty for the offense of embezzlement when committed by an agent as when committed by a servant of another, and because an indictment in a single count describes the offender as occupying both positions conjunctively, that of agent and servant, at the time of the commission of the offense, does not render it bad for uncertainty; for in such a case but one offense is charged and the prosecutor is at liberty to prove either or both of the capacities in which the defendant acted at the time of committing the offense, and if either or both of such capacities were proven, together with the other ingredients of the offense, the crime would be made out.
It is the policy of this court, as it evidently was of the Legislature in enacting sections 3961 and 3962 of the General Statutes of 1906, to uphold indictments and informations whenever there has been a substantial compliance with the law therein.
In an indictment for embezzlement found under section 3311 of the General Statutes of 1906, it is not necessary to allege that a demand has been made upon the defendant for the property which he is charged with having embezzled, since such statute does not require that the indictment should allege any such demand.
In possing upon a single instruction or charge, it should be considered in connection with all the other instructions and charges bearing on the same subject; and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction or charge must fail, unless under all the peculiar circumstances of the case the court is of the opinion that such instruction or charge was calculated to confuse, mislead, or prejudice the jury.
Where an instruction, as far as it goes, states a correct proposition of law, but is defective because it fails to qualify or explain the proposition it lays down in consonance with the facts of the case, such defect is cured, if previous or subsequent charges or instructions are given containing the required qualifications or exceptions. It is not required that a single instruction should contain all the law relating to the peculiar subject treated therein.
In a prosecution for embezzlement, if the defendant conceived it necessary or advisable to have the words 'servant' and 'agent' defined, or if he desired to have the jury more fully instructed upon any point, he should have prepared and presented to the trial court the specific instructions he wished given. If he fails to do this, an appellate court will not entertain his complaint of such omission by the trial court.
No error is committed in sustaining objections to questions propounded to a witness on his cross-examination, when they were not in cross of anything brought out on the direct examination, especially when such questions simply call for the opinion of the witness.
It is the duty of a party resorting to an appellate court to make the errors complained of cleraly to appear, if they in truth exist; every presumption being in favor of the correctness of the rulings of the trial court. The attention of the appellate court should be called to the specific grounds upon which the error is based by the party assigning it, and he should state his reasons therefor in his brief, cite authorities in support thereof, and, where reference to the transcript of the record is necessary, should give the pages thereof.
In both civil actions and criminal prosecutions, a motion to strike out the entire testimony of a witness should be denied, if any part thereof is admissible for any purpose. The motion should be confined specifically to the inadmissible portions otherwise, it will be too broad.
Where no objections are interposed to questions propounded to a witness, and his testimony is admitted without objection, the party so failing to object is not entitled as a matter of right to have the responsive testimony of the witness stricken out on motion, even though it may be irrelevant or incompetent, and open to attack by proper grounds of objection.
When evidence which may have been irrelevant, or otherwise open to an objection seasonably made, has been admitted without objection, the witness having been examined and cross-examined by the respective parties, it is not error to deny a motion to strike out such evidence, made after its tendency and effect have been disclosed.
A motion to strike out evidence that has been introduced in a cause must be predicated upon some feature of irrelevancy incompetency, legal inadmissibility, or impertinency in the evidence itself, and not upon the ground that it is not sufficient.
An appellate court will consider only such grounds of objection to the admissibility of evidence as were made in the court below, the plaintiff in error being confined to the specific grounds of objection made by him in the trial court; and only such of the grounds so made below as are argued before the appellate court will be considered by it.
General objections to evidence, whether interposed at the time the evidence is offered or embraced in a motion to strike out or exclude, without specifying the precise grounds, are vague and nugatory, and are without weight before an appellate court, unless the evidence is inadmissible under any circumstances.
The utmost care should be used by the trial judges, especially in criminal prosecutions, not to let any expression fall, either by question, instructions, or otherwise, that is capable of being interpreted by the jury as an index of what such judge thinks of the prisoner, his counsel, or his case.
In a prosecution for embezzlement, where the court in the general charge used the following language: 'As the state attorney said in his argument, embezzlement is the twin brother of larceny, the only difference being the manner in which the money comes into the possession of the party charged with one or the other offenses'--such reference to the argument of the state attorney is not approved; but where no complaint is made as to the correctness of the distinction drawn between the two offenses, it does not constitute reversible error.
In a prosecution for embezzlement based on section 3311 of the General Statutes of 1906, the fraudulent conversion of the property by the defendant is an essential ingredient or element of the crime, and the giving of a charge that, if the defendant 'converted that money to his own use, he would be guilty under this indictment of embezzlement of such sum of money as the evidence should satisfy you beyond a reasonable doubt was converted by him to his own use,' is defective in the omission of the word 'fraudulently' before 'converted,' and, if this paragraph of the general charge stood alone, it would constitute reversible error; but, where instructions were given at the request of the defendant which fully supplied the essential element of fraudulent conversion so omitted, and specifically informed the jury that there should be no conviction unless the evidence showed beyond a reasonable doubt the fraudulent conversion of the property by the defendant, such error was cured.
Evidence examined, and found sufficient to support the verdict.
Daniel Campbell & Son, for plaintiff in error.
W. H. Ellis, Atty. Gen., for the State.
Andrew Lewis, the plaintiff in error, was indicted in the circuit court for Walton county, at the Spring term, 1907, for larceny and embezzlement, tried at the same term, and found guilty of embezzlement and sentenced to pay a fine of $50, or in default thereof to imprisonment in the county jail of Walton county for the period of three months. From this judgment and sentence he seeks relief here by writ of error.
The first assignment of error is based upon the overruling of the motion to quash the indictment. We find that the indictment contained four counts, the first two of which charged the defendant with larceny and the last two charged him with embezzlement. The jury found him guilty of embezzlement as chargd in the third count, which was an acquittal upon the other three counts. It will be necessary, therefore, for us to notice only such grounds of the motion as apply to the third count, which count is as follows:
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