Livingston v. State

• Decision Date: 03 February 1933
• Citation: Livingston v. State, 108 Fla. 193, 145 So. 761 (Fla. 1933)
• Parties: LIVINGSTON v. STATE.
• Court: Florida Supreme Court

145 So. 761

108 Fla. 193

LIVINGSTON v. STATE.

Florida Supreme Court

February 3, 1933

En Banc.

Error to Circuit Court, Madison County; Hal W. Adams, Judge.

Archibald Livingston was convicted of willful misapplication of bank's funds, and he brings error.

Reversed for a new trial.

COUNSEL

J. R. Hodges, of Lake City, R. C. Horne, of Madison J. McHenry Jones, of Pensacola, Lester Summersill, of Mayo and Doggett, McCollum, Howell & Doggett, of Jacksonville, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

JOHNSON Circuit Judge.

The plaintiff in error, Archibald Livingston, hereinafter called the defendant, was indicted by a grand jury of Madison county, Fla.The indictment was presented in open court by the grand jury on the 17th day of October, 1930.The defendant was tried on the third count of the indictment; was convicted and sentenced to serve four years in the state penitentiary.

The third count of the indictment, upon which the defendant was tried and convicted, was as follows:

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present that Archibald Livingston, on the 13th day of March, in the year of our Lord one thousand nine hundred and twenty-nine, at and in the county of Madison and State of Florida, then and there being, and being then and there President and a director of Citizens Bank of Madison, of Madison, Florida, which said bank was then and there a banking corporation, organized, existing and doing business in, and under the laws of, the State of Florida, and domiciled in Madison County, State of Florida, did then and there unlawfully, fraudulently and wilfully misapply certain of the money, funds and credits of the Citizens Bank of Madison, of Madison, Florida, of the value of Five Thousand dollars, of the property of Citizens Bank of Madison, of Madison, Florida, a better description whereof is to the grand jurors unknown except as hereinafter described, with intent then and there in him, the said Archibald Livingston, to injure and defraud the said banking corporation and some other person or persons to the grand jurors unknown, in the manner and by the means following that is to say: that he, the said Archibald Livingston, by virtue of the power of control, direction and management, which he, the said Archibald Livingston then and there had over the money, funds, credits, business and affairs of the said banking corporation, as President and a director thereof, did on the 26th day of February, 1929, issue a certain bank draft, of the said banking corporation, payable to Atlantic National Bank of Jacksonville, Florida, drawn on The Citizens and Southern National Bank, of Atlanta, Georgia, in the sum of $7,000.00, which was duly honored by the said last mentioned bank and charged to the account of Citizens Bank of Madison, of Madison, Florida; that by direction of the said Archibald Livingston the said sum of $7,000.00 was applied to the payment of a promissory note due by Archibald Livingston to The Atlantic National Bank of Jacksonville on February 27th, 1929; that Archibald Livingston thereby became liable to the said Citizens Bank of Madison for the payment of the said sum of $7,000.00, but that instead of paying all of the said sums, he, the said Archibald Livingston placed among the assets of Citizens Bank of Madison, of Madison, Florida, without the consent of said banking corporation or of its board of directors and without the knowledge thereof, a certain promissory note in the amount of $5,000.00, executed by A. Livingston, Jr., dated March 11, 1929, who was and is the son of the said Archibald Livingston, a better description of which said promissory note is to the grand jurors unknown; that the said A. Livingston, Jr., was then and there insolvent, and known to the said Archibald Livingston to be insolvent; that the said note was so placed among the assets of the Citizens Bank of Madison, of Madison, Florida, with the fraudulent purpose and design to convert to the use, benefit and advantage of Archibald Livingston, the said sum of $5,000.00 hereinbefore alleged to have been misapplied by him the said Archibald Livingston; and which said sum of $5,000.00 as aforesaid thereby became and was wholly lost to the said banking corporation; the said promissory note of the said A. Livingston, Jr., being wholly worthless; a better description of the manner and means used to effectuate and consummate the said wilful misapplication of said property being to the grand jurors unknown."

A change of venue was granted from Madison county to Lafayette county, in which latter county the defendant was tried.

The first assignment of error is: 'The Court erred in sustaining the state's demurrer to defendant's plea in abatement the same being a plea of misnomer.'The substance of this plea was that the defendant'respectfully shows unto the Court that he is not named or called Archibald Livingston, that in truth and in fact his true and right name is Archie Livingston, by which name this defendant has been known and called at all times.'A demurrer to this special plea in abatement was sustained.In the case of Waldron v. State,41 Fla. 265, 26 So. 701, this court held: Plea in abatement for misnomer must state the true name of the accused, and that he was not commonly known and called by the name under which he was indicted.There was no error in sustaining demurrer to this plea.

The second assignment of error is: 'That the court erred in overruling defendant's motion for a bill of particulars.'We find no error in this ruling.

The third assignment of error is: 'That the Court erred in and by the entry of its order and ruling, jointly and severally, upon the several pleas of the defendant's plea in abatement.'

The defendant filed eight pleas in abatement; each plea attacking the validity of the indictment.The court on his own motion took these pleas and considered them and overruled them.No motion was made by the state to strike said pleas, nor did the state file a demurrer to the said pleas nor to any one of them.It could serve no good purpose to recite the substance of all of the said eight pleas.We do not consider that pleas from two to seven, inclusive, had any merit.Pleas one and eight are the same, except that plea eight is more specific as to details in the matter set up.Pleas two and eight contain two propositions: First, that there were only four members of the board of county commissioners present at the regular meeting on January 6, 1930, at which time the jury list for the year 1930 was made up, and from which list the grand jurors who presented the indictment in this case were drawn.This proposition is on the theory that all five of the county commissioners had to be present to perform this service.There is no merit in this proposition.The second proposition contained in these two pleas, pleas two and eight, is: 'That the regular jury lists, as prepared by the County Commissioners at their regular meeting on the first Monday in January, 1930, to-wit: the 6th day of said month, have been destroyed and have not been preserved by the Clerk of the Circuit Court of Madison County nor the County Commissioners of said County as required by law.'In this last proposition, in its nakedness, there is some merit.The law makes every provision for the preservation of the integrity of the jury box, and to insure, as far as is humanly possible, competent, fair, and impartial jurors for service in the courts of this state.All checks and balances are provided to insure this.

Section 4444, Compiled General Laws of Florida, provides for the making up of the jury lists by the county commissioners of the several counties of this state, and prescribes the qualifications of those whose names shall be placed on this list.This list has to be verified by the county commissioners.The statute then provides that: 'Said list shall be forthwith delivered to the clerk of the circuit court and by him recorded in the minute book of the board of county commissioners.'

If no lists were preserved there would be no way to check the names drawn from the jury box, and there would be no way of showing that the jury lists and the names were lawfully in the box.

The trial court in entering his ruling and judgment overruling the pleas in abatement recites:

'The Court has examined the record of the board of county commissioners and finds that at its January, 1930, meeting, the same being a regular meeting time of said board, that the jury list was made up by said board, and that the list appears recorded in the minute book of said board.Four of the commissioners were present at said meeting.'

It appears that the court tried and determined the pleas in abatement without issues in law or in fact being presented.It also appears that in determining these pleas the court examined and considered record evidence outside of the records of this case.

This court has held in the cases of Woodward v. State,33 Fla. 508, 15 So. 252, and in the case of Cotton v. State,85 Fla. 197, 95 So. 668, that pleas in abatement raising an issue of fact shall be tried by a jury.

The state argues that the record of the minutes of the board of county commissioners is a public record of which the court can take judicial notice.

Law and precedent have clearly defined the matters and things of which a court will take, or can take, judicial notice.It doesn't include records required by law to be kept by county officers.

In the case of McNish v. State,47 Fla. 69, 36 So. 176this court held that, 'An appellate court, as well as every other court, will take judicial notice of its own records, so far as they appertain...