Mayers v. State
| Decision Date | 22 May 1936 |
| Citation | 126 Fla. 640,171 So. 824 |
| Parties | MAYERS v. STATE. |
| Court | Florida Supreme Court |
Judgment Adhered to on Rehearing February 3, 1937.
Error to Circuit Court, Pinellas County; John I. Viney, Judge.
Herbert R. Mayers was convicted of embezzlement and he brings error.
Reversed and remanded for a new trial.
COUNSEL S. E. Simmons, of Clearwater, for plaintiff in error.
Cary D. Landis, Atty. Gen., Roy Campbell, Asst Atty. Gen., and M. A. McMullen and Cyril E. Pogue, both of Clearwater, for the State.
The writ of error brings for review a judgment of conviction of embezzlement under the first count of an indictment, which indictment was in three counts.
The first count charged the embezzlement of money in the sum of $96,120; the second count charged the embezzlement of money in the sum of $18,473.35; and the third count charged the embezzlement of certain corporation stock certificates, of the total value of $96,120.
Plaintiff in error contends that there are ten questions presented for our determination. The first question challenges the action of the court in denying motion of the defendant at the close of the state's evidence to require state to elect as to which count it would stand upon for conviction. When the motion was made to require the state to elect upon which count it would stand for conviction, the disposition of the motion rested in the sound discretion of the trial court provided the counts of the indictment were not repugnant to or inconsistent with one another. See Green v State, 17 Fla. 669; Eggart v. State, 40 Fla 527, 25 So. 144; Branch v. State, 76 Fla. 558, 80 So. 482.
If, however, the counts of the indictment are such that under the evidence adduced the defendant cannot be convicted on more than one of such counts, then to deny a motion when properly and timely made to require the state to elect as to the count of the indictment upon which it will proceed with the prosecution constitutes reversible error warranting a new trial. See Griswold v. State, 77 Fla. 505, 82 So. 44; Carlton v. State, 108 Fla. 34, 145 So. 249.
When the motion to require election of the count under which the state would proceed with the prosecution was made the state had closed its case and, as the record then stood, the defendant could not have been convicted, if at all, on more than one of the three counts of the indictment. The third count, as hereinbefore stated, charges the embezzlement of certain corporate capital stock certificates of the aggregate value of $96,120. Count 1 charged the embezzlement of $96,120 in money, which money, if embezzled by the defendant at all, was without question or doubt the proceeds of the corporate capital stock certificates referred to in the third count. Therefore, the defendant could not have been guilty of the embezzlement of the corporate capital stock certificates and also have been guilty of the embezzlement of the proceeds of those certificates.
It is also cleary apparent and uncontradicted that if the defendant had been convicted under the second count of the indictment charging the embezzling of $18,473.35, he could not have been convicted under the first count because it was uncontrovertibly apparent from the record that the sum of $18,473.35 was included in and constituted a part of the sum of $96,120 which was alleged to have been embezzled by the first count of the indictment.
The trial judge recognized this condition and the law applicable thereto when he gave charge numbered 9, which was as follows:
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Channell v. State
...elect rests within the sound judicial discretion of the trial court. Pearce v. State, 1940, 143 Fla. 347, 196 So. 685; Mayers v. State, 1936, 126 Fla. 640, 171 So. 824; and Houchins v. State, 1944, 154 Fla. 283, 17 So.2d 82. It takes only a cursory examination of the information here to obs......
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Williams v. State
...be convicted under both, it is error to deny a timely motion to require the State to elect between the two counts); Mayers v. State , 124 Fla. 326, 171 So. 824, 825 (1936) (applying the rule to embezzlement of stock and embezzlement of stock proceeds). But we have found no cases applying th......
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Tidwell v. State
...a motion timely and properly made to require the state to elect upon which of the two counts it will stand for conviction. Mayers v. State, 126 Fla. 640, 171 So. 824; Carlton v. State, 108 Fla. 34, 145 So. See also Pearce v. State, Fla., 196 So. 685, argued this term. When is a motion requi......
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