Martin v. Karel

• Decision Date: 03 August 1932
• Citation: 143 So. 317,106 Fla. 363
• Parties: MARTIN v. KAREL, Sheriff.
• Court: Florida Supreme Court

143 So. 317

106 Fla. 363

MARTIN v. KAREL, Sheriff.

Florida Supreme Court, Division A.

August 3, 1932

Original habeas corpus proceedings by W. E. Martin against Frank Karel, as Sheriff of Orange County.

Demurrer to return of Sheriff to writ of habeas corpus overruled, and petitioner remanded to the custody of the Sheriff.

COUNSEL

Maguire & Voorhis and Akerman & Gray, all of Orlando, for petitioner.

Cary D Landis, Atty. Gen., and O. Raymond Ellars, Co. Sol., and H B. S. Hammond, both of Orlando, for respondent.

OPINION

ELLIS J.

On January 8, 1932, the county solicitor for Orange county Fla., caused to be filed in the criminal court of record for that county three informations against W. E. Martin, who occupied the office of tax collector of that county and who had held such office continuously since January 1, 1928, charging him with embezzlement of county funds in the sum of $37,578.94.

The first information charged embezzlement during the year 1928 of $17,644.11, the second charged embezzlement during the year 1929 of $12,988.58, and the third charged embezzlement during the year 1930 of $6,946.25.

Following more accurately the language of each information, the embezzlement of the money received in 1928 was definitely alleged to have been committed on January 1, 1929, the money received in the year 1929 was alleged to have been embezzled on January 1, 1930, and that received in 1930 to have been embezzled on January 1, 1931.

The word 'embezzlement' is not used in either one of the three informations, but it is alleged that Martin, who was tax collector for Orange county, was required by the duties of his office to receive into his possession certain moneys, the property of Orange county; that he did actually receive into his possession as tax collector during the years 1928, 1929, and 1930 certain sums of money the property of the county of Orange, and which he unlawfully and feloniously converted to his own use. Each information in the first count supplemented the charge of embezzlement with the following words: 'Instead of depositing the said sum of monies into the Excess Fee Fund created by the Board of County Commissioners of Orange County.'

Each information contained two counts. The second count in each charged that the accused 'unlawfully and feloniously' withheld from Orange county and from the excess fee fund created by the board of county commissioners of Orange county, Fla., the sums of money received by him 'with intent to convert (the same) to his own use.'

The information clearly charged in each count the offense of embezzlement as defined by section 7253, Comp. Gen. Laws 1927. Rast v. State, 79 Fla. 772, 84 So. 683.

The allegation that Martin 'unlawfully and feloniously' converted the money to his own use or withheld it from the proper persons or officers was superfluous. The gist of the offense denounced by section 7253, supra, as clearly shown by Mr. Justice Strum in Crosby v. State, 90 Fla. 381, 106 So. 741, 745, 'is the receipt by the officer, in his official capacity, of money or other property belonging to another, and the withholding or conversion thereof, to his own use, or the secreting thereof with intent to so convert the same.' Likewise superfluous were the words appended to each charge as follows: 'Instead of depositing the said sums of monies into the Excess Fee Fund created by the Board of County Commissioners of Orange County' etc.

The charge was clear, definite, unambiguous, certain to a very high degree in the first count, that Martin, the accused, as tax collector, received into his possession, as part of his duties, certain public money belonging to the county which he converted to his own use, and, in the second count, withheld with the intent to convert to his own use. The gist of the offense with which he was charged does not consist in Martin's failure to pay the money into the excess fee fund. If he had deposited the money in a bank to the credit of the county to whom it belonged, or delivered it to the clerk to be paid to the county commissioners, or had proceeded in any way however artless, simple, naive, but irregular, to pay over the money to the county, it could not be maintained that such conduct would not have disproved an intention to convert the money to his own use or a withholding for such purpose.

So the words to which reference has been made which were attached to or hung upon each count were unnecessary, explained nothing, and therefore useless. They neither altered not complicated the charge of embezzlement nor interfered with a clear presentation of the defense, nor in any wise affected the defendant's constitutional right to be informed of the nature and cause of the accusation against him.

The three informations covering the period of three years of alleged embezzlement by the accused contain allegations to the effect that during those three years the office of tax collector for Orange county cost the people of this state and of Orange county cost the people of clerical help and 'office expenses'; $22,500 for services of the tax collector allowed by law, plus $37,578.94 funds embezzled, making a total of $112,287.82.

The accused was acquitted upon the first information. There was a mistrial on the second, and the third has not been tried.

A writ of habeas corpus was ordered to be issued by a justice of this court returnable before the Supreme Court upon petition of the accused. The petition alleged that the accused was detained and deprived of his liberty by the sheriff of Orange county on two charges of embezzlement as contained in the second and third informations.

The petitioner contends, as set forth in his petition, that the whole controversy arose from a 'dispute regarding the amounts claimed to be due and owing by (him) your Petitioner to Orange County Florida for and by reason of certain alleged excess fees for the years 1929 and 1930, pursuant to chapter 11954, Acts of 1927, and has no reference whatever to any tax monies or other monies of any kind and nature whatever belonging to or in possession of Orange County, and relates solely to said alleged balances for excess fees aforesaid.'

The petitioner also contends that there is no law of this state under which he can be lawfully held or prosecuted on any charge of embezzlement for failure to comply with the terms of chapter 11954, Laws of 1927, and there is no 'criminal penalty of any kind provided for any violation or noncompliance with said' act; that he has accounted for and paid over, as required by law, all taxes collected by him. The petition also contains allegations from which the facts above recited were taken. It was alleged that a bill of particulars was attached to each of the two informations which would show that the prosecution in each case rests upon the failure of the accused to pay over to the county a large sum of money which he had received from the state and county in excess of the amount to which he was legally entitled for salaries of clerks and expenses of the office and fees allowable under the law to him as compensation for his services as tax collector.

It may not be amiss to give at this point a succinct or condensed statement of the bill of particulars which was filed with the second information. The one attached to the third information is similar, varying only in amounts.

Receipts: Commissions from State Comptroller and State Treasurer for collection of State Taxes and State Land Sales ..................... $ 7,367.31 Commissions from Orange County for the collection of County Taxes .......................... 18,441.85 Commissions from the Board of Public Instruction for the collection of School Taxes ............. 6,675.91 Commissions for collection Taft Drainage District Taxes ................... 80.84 Commissions on sale of Individual Tax Certificates ............ 6,047.80 Fees for issuing Tax Sale Certificates ............................. 234.60 Commissions from the Clerk- Circuit Court on purchase and redemption of Tax Certificates ........... 750.37 Total Receipts ................................ $39,598.68 Expenditures: Salaries ............................... $15,474.00 Other expenses ........................... 2,011.14 ---------- Total expenses ................................ $17,485.14 Receipts less Expenditures ......................... $22,113.54 Allowance to Tax Collector by Statute ................ 7,500.00 ---------- Excess Fees Collected .............................. $14,613.54 Excess Fees reported and delivered to Orange County ...................................... 1,624.96 ---------- Balance due Orange County alleged to have been Embezzled .............................. $12,988.58

The above covers the petitioner's handling of public moneys for the year 1929.

The petition argues from the above and similar bills of particulars that the petitioner is proceeded against for a 'criminal offense supposed to have arisen because of an alleged violation of said chapter 11954, Acts of 1927, Laws of Florida, and because of an alleged failure to pay into the special fund provided thereby all of the monies in excess of the sum to which petitioner is alleged to be entitled thereunder.'

It is contended that the supposed offense cannot possibly constitute a crime; therefore the criminal court of record is without jursdiction to try the accused. The reason given for the above postulate is that chapter 11954, supra, prescribes its own method of enforcement and in such manner as to preclude enforcement by a criminal prosecution: that the statute prescribes no criminal penalty for its violation, and a criminal offense cannot be created by inference; that the statute relating to embezzlement by public officials, section...