Munoz v. State

• Decision Date: 03 March 1924
• Citation: 87 Fla. 220,99 So. 555
• Parties: MUNOZ v. STATE.
• Court: Florida Supreme Court

99 So. 555

87 Fla. 220

MUNOZ v. STATE.

Florida Supreme Court, Division A.

March 3, 1924

Error to Criminal Court of Record, Duval County; James M. Peeler Judge.

John C Munoz was convicted of embezzlement, and he brings error.

Reversed.

(Syllabus by the Court.)

COUNSEL

F. P. Fleming, Wm. A. Hallowes, Jr., and Miles W Lewis, all of Jacksonville, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, for the State.

OPINION

BROWNE J.

J. C. Munoz was prosecuted in the criminal court of record of Duval county on an indictment containing two counts: The first charged him with an embezzlement of 'one lot of paper bills and silver coins of the value of $383.62,' and the second count with the embezzlement of 'one bank check of the value of $383.62,' the property of S. Blatner.

The first count was expressly abandoned by the state, and the defendant found guilty on the second count.

There are a number of assignments of error, but we need only discuss the one relating to the ground in the motion for a new trial--that there was no evidence to support the verdict.

The plaintiff in error, a member of the partnership known as the Munoz-Kelly Company, a brokerage firm, sold a carload of beans to several merchants in Jacksonville, of whom S. Blatner was one. When the draft for the beans reached Jacksonville, Munoz called on Blatner for his part of the purchase price, and was given a check drawn by him on the Atlantic National Bank for $425.62, payable to the order of Munoz-Kelly Company.

The proceeds of this check, together with additional funds that Munoz was to receive from other merchants who bought part of the car load of beans, were to be used to take up the draft promptly, in order to get the advantage of 1 per cent. discount, if the draft was paid within ten days.

Conceding that Munoz was the one who cashed the check, although the testimony entirely fails to establish that fact, he cannot be convicted of having embezzled the check, because it was given to him to be cashed, and he did that with it for which it was intended. The check was not given to be exchanged for the draft, but was to be cashed and the proceeds to be used in part to take up the draft.

In the case of Gray v. State, 160 Ala. 107, 49 So. 678, the defendant, under indictment for the embezzlement of 'money, bank notes, checks, or bills of exchange,' requested this charge, which was refused:

'Charge 2. I charge the jury that, if the check was made payable to the defendant, and he cashed it, he could not be guilty of the embezzlement of the check.'

The Supreme Court, in holding that this was error, said:

'Charge 2, requested by the defendant, should have been given. If the check was made payable to him, and he cashed it, that fact would not constitute an embezzlement of the check. The charge does not instruct an acquittal, or exonerate the defendant from embezzling the proceeds, but simply instructs that the cashing of the check did not constitute an embezzlement of the said check.'

See, also, State v. Peck (Mo. Sup.) 253 S.W. 1019.

Where a person intrusted with property to sell for another sells it and keeps the proceeds, he cannot be convicted of embezzling the property, although under certain circumstances he may be convicted of embezzling the money derived from the sale. 9 R. C. L. pp. 1268, 1269, 1276; McCrary v. State, 51 Tex. Cr. R. 502, 103 S.W. 924, 123 Am. St. Rep. 915, 14 Ann. Cas. 722; Dotson v. State, 51 Ark. 119, 10 S.W. 18; State v. Dodson, 72 Mo. 283; State v. Mispagel, 207 Mo. 557, 106 S.W. 513.

One who delivers a check to another to whom it is made payable authorizes and empowers him to cash the check, and, if he does so, he cannot be convicted of embezzling the check. Even if the check be given to the...