Middleton v. State
| Decision Date | 30 October 1917 |
| Citation | 74 Fla. 234,76 So. 785 |
| Parties | MIDDLETON v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Bay County; D. J. Jones, Judge.
D. K Middleton was convicted of embezzlement of county funds, his motion for a new trial was denied, and he brings error. Reversed.
Syllabus by the Court
A motion to quash an indictment upon the ground that the court has no jurisdiction to try the offense charged is not the proper remedy, where, under the statute in such case, the clerk of the circuit court is required to docket the case on the trial docket of the court having jurisdiction in the county where the offense was alleged to have been committed.
A bill of particulars constitutes no part of an indictment, and the latter is not affected by any defects or inadequacies of the former. Reference cannot be had to the bill of particulars to point out any defect in the indictment.
Chapter 6969, Laws of Florida 1915, relating to the protection of game in this state, requires the county judge to receive money for issuing hunters' licenses, and that the money so received and reduced by the fees which the law requires to be paid to the game warden and retained by the county judge is deemed to be money belonging to the county within the meaning of section 3317, General Statutes of Florida 1906 prescribing punishment for embezzlement by any state, county or municipal officer of any money, property, or effects belonging to the state, county, city, or town.
Section 38 of chapter 6969, Laws of Florida 1915, which provides a penalty for the failure of any official, officer, or warden to perform an act, duty, or obligation enjoined upon him by the provisions of the game laws, is not applicable to the crime of embezzlement defined and punished by section 3317 General Statutes of Florida, in cases where a county judge converts to his own use or withholds with such intent money collected for hunting licenses under the provisions of the act of 1915.
One statute will not be held to repeal a prior statute by implication, unless the legislative intent to repeal the former statute is made clearly to appear from the provisions of the latter statute.
The purpose of a bill of particulars in a criminal case is to advise the defendant more fully than the indictment or information, as to the nature and cause of the accusation against him, and to enable him more readily to prepare his defense.
A bill of particulars is no part of the pleadings; it neither weakens nor strengthens the indictment or information, although it may have the effect of narrowing the indictment as to the time within which the acts alleged constituting the offense may be proved.
The propriety of a motion to strike any item from a bill of particulars questioned.
A new trial should be granted if there is no evidence sufficient to support a verdict of guilty.
Evidence examined, and found insufficient to support the verdict.
COUNSEL Price & Carter, of Marianna, and J. R. Wells, of Panama City, for plaintiff in error.
Van C. Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
The plaintiff in error, who held the official position of county judge of Bay county from January, 1915, to September 15, 1916, was indicted for embezzlement of county funds.
The indictment was presented in March, 1917, and contained three counts: One charging that between November 20, 1915, and March 10, 1916, the plaintiff in error as county judge of Bay county received and took into his possession certain moneys belonging to the county amounting to $20, and feloniously embezzled and converted the same to his own use; the second charged that he fraudulently withheld the money from the treasurer of Bay county with intent to convert the same to his own use; and the third count charged that he feloniously secreted the money with intent to convert it to his own use.
The plaintiff in error was convicted upon the second count of the indictment, and sentenced to three years' imprisonment in the state prison. From this conviction and sentence he comes to this court upon writ of error.
The section of the General States under which this prosecution was held is section 3317, and so far as it applies to this case is as follows:
The indictment in each count charged that Middleton as county judge received and took into his possession the money described which came into his possession by virtue of his office.
An attack was made upon the indictment by motion to quash, which was denied. This was followed by a motion to transfer the cause to the county court of Bay county. Before these motions were made counsel for the defendant below moved the court for a bill of particulars, which motion was granted, and a bill of particulars furnished by the state attorney. The bill of particulars as copied in the bill of exceptions is as follows:
'State of Florida v. D. K. Middleton.
'Now comes the state attorney and for a bill of particulars says that the persons from whom the defendant received moneys were Hurley Patrick, $1.00, J. C. Sims, $1.00, Charlie Russ, $1.00, M. Mayers, $1.00, Rei Hogeboom, $1.00, W. C. Vickery, $3.00, and other persons unknown to the state attorney the sum of $12.00, which said moneys were collected and came into the hands of the defendant as the money belonging to the county of Bay, Florida, derived from the sale of hunting license for the reason of 1915 and 1916, and that said money came into possession of the defendant in the months of November and December, 1915, and January, February and March, 1916.
'Ira A. Hutchinson, State Attorney.'
A motion was made to eliminate the following item: 'And other persons unknown to the state attorney the sum of $12.00'--upon the ground that it was vague, indefinite, and uncertain, and did not apprise the defendant of the specific charge against him. This motion was also denied.
The overruling of the motions to quash the indictment, for a transfer of the cause to the county court and for the elimination from the bill of particulars of the item above referred to, constitute the bases of the first, second, and third assignments of error.
The motion to quash the indictment contains four grounds, which are in substance as follows: First, that neither count of the indictment charges any offense against the laws of Florida second, that the laws of Florida do not require the county judge to receive any public money belonging to the state; third, that the money alleged to have been withheld or embezzled by the defendant was derived from hunting licenses, and under the law belonged to the public school fund, and not to Bay county; and, fourth, that it appears from the indictment and bill of particulars that the circuit court has 'no jurisdiction in the premises.' If the crime charged in the indictment was in the light of the bill of particulars cognizable by the county court and not by the circuit court, a motion to quash was not the remedy, because under our statute (section 3894, General Statutes of Florida 1906) the clerk of the circuit court should have docketed the case on the trial docket of the county court. The clerk's failure to perform his duty, assuming that it was his duty to docket the case on the trial docket of the county court, afforded no ground for quashing the indictment, because such remedy avails only when the indictment is fatally defective and appears so upon its face. Broward v. State, 9 Fla. 422; 22 Cyc. 417. Nor could resort have been made to the bill of particulars to point out any defect in the indictment. The purpose of a bill of particulars is merely to give the defendant notice of the particular acts relied upon by the state to establish the crime charged, that the defendant may be fully advised of the nature and cause of the accusation against him, and that he may have an opportunity to prepare his defense. The bill of particulars, however, is no part of the indictment, and the latter therefore is not affected by any defects or inadequacies of the former. See Royal Phosphate Co. v. Van Ness, 53 Fla. 135, 43 So. 916. The bill of particulars is dehors the record. A defect appearing in the bill of particulars is in effect a defect in the proof. See Commonwealth v. Bartilson, 85 Pa. 482. Objections to the sufficiency of the indictment cannot be made by objecting to the evidence in...
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