Sigsbee v. State

• Decision Date: 15 October 1901
• Parties: SIGSBEE v. STATE.
• Court: Florida Supreme Court

30 So. 816

43 Fla. 524

SIGSBEE v. STATE.

Florida Supreme Court

October 15, 1901

Error to circuit court, Alachua county; William A. Hocker, Judge.

Walter A. Sigsbee was convicted of embezzlement, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The amendment of section 2463, Rev. St., by chapter 4530, Laws 1897, did not deprive the state, under article 3, s 32 Const. 1885, of the right to prosecute for offenses committed against the section as it originally existed, before amendment, though the indictment should not be found until thereafter.

2. A motion to quash an indictment consisting of more than one count should be denied if either count be good.

3. A count in an indictment found under section 2463, Rev. St before its amendment in 1897 (chapter 4530), alleged that the accused on a specified date, in a named county in this state being an officer of the city of Gainesville, a municipal corporation under the laws of Florida, to wit, clerk and treasurer, whose duty then and there required him to receive public money belonging to said city, did, by virtue of his said office as clerk and treasurer, and while acting as such receive and take into his possession certain moneys, the property of the said city of Gainesville, at divers times between July 7, 1896, and April 21, 1897, to wit, the sum of $2,226.14, a more particular description of which is to the grand jurors unknown, for and in the name and on account of the city of Gainesville aforesaid, and the said money so as aforesaid coming into his possession by virtue of his said office as clerk and treasurer he then and there, on the 21st day of April, 1897, and in said county, fraudulently and willfully withheld, to wit, the sum of $2,226.14, a more particular description of which is to the grand jury unknown, so as to prove a defaulter to the city of Gainesville aforesaid, against the peace and dignity of the state of Florida, and contrary to the statute in such cases made and provided. Held, that the count was good under section 2463, Rev. St. before it was amended in 1897, and that the offense thereby created is distinguishable, as to the manner of its allegation, from other offenses of embezzlement considered in the cases of Grant v. State, 17 So. 225, 35 Fla. 581, 48 Am. St. Rep. 263, and Thalheim v. State, 20 So. 938, 38 Fla. 169.

4. Where the propriety of a charge to the jury depends upon a certain state of facts, the appellate court cannot consider the correctness of the charge, in the absence of the testimony; but, when the charge is radically wrong under any state of facts, the court may declare it error.

5. The following charge held not to be erroneous, viz.: 'The jury are admonished that there should be no mistrial in this case if it is possible for the jury to agree upon a verdict, if they can do so without violating their conscientious convictions based upon the evidence. This case has taken up a whole week of this term, and has necessarily been costly to the state and county, and has forced the postponement of other important cases. The jury should therefore lay aside pride of opinion and judgment, examine any differences of opinion there may be among them in a spirit of fairness and candor, reason together and talk over such differences, and harmonize them, if this be possible, so that this case may be disposed of.'

COUNSEL Robt. E. Davis and S. Y. Finley, for plaintiff in error.

W. B. Lamar, Atty. Gen., and Syd. L. Carter, State's Atty., for the State.

OPINION

MABRY J.

Plaintiff in error was indicted on the 23d day of December 1897, in the circuit court for Alachua county, for embezzlement; the indictment containing two counts (omitting formal parts), as follows:

(1) That Walter A. Sigsbee on the 21st day of April, 1897, with force and arms, at and in the county of Alachua aforesaid, being then and there an officer of the city of Gainesville, a municipal corporation under the laws of the state of Florida, to wit, clerk and treasurer, did, by virtue of said office as clerk and treasurer, and while such officer, to wit, clerk and treasurer, receive and take into his possession certain moneys, the property of the city of Gainesville, at divers times between the 7th day of July, 1896, and April 21, 1897, to wit, the sum of $2,226.14, for and in the name and on account of the city of Gainesville aforesaid; and the said money so as aforesaid coming into his possession by virtue of his said office as clerk and treasurer aforesaid he, the said Walter A. Sigsbee, then and there, to wit, on the 21st day of April, aforesaid, in the county and state aforesaid, did feloniously embezzle and feloniously and fraudulently convert to his own use, to wit, the sum of $2,226.14, a more particular description of which is to the grand jury unknown, against the form of the statute in such cases made and provided, and against the peace and dignity of the state of Florida.

(2) That Walter A. Sigsbee on the 21st day of April, 1897, in the county of Alachua aforesaid, being then and there an officer of the city of Gainesville, a municipal corporation under the laws of Florida, to wit, clerk and treasurer, whose duty then and there required him to receive public money belonging to said city of Gainesville, did by virtue of his said office as clerk and treasurer, and while acting as such officer, to wit, clerk and treasurer, receive and take into his possession certain moneys, the property of the said city of Gainesville, at divers times between July 7, 1896, and April 21, 1897, to wit, the sum of $2,226.14, a more particular description of which is to the grand jurors unknown, for and in the name and on account of the city of Gainesville aforesaid, and the said money so as aforesaid coming into his possession by virtue of his said office as clerk and treasurer aforesaid he, the said Walter A. Sigsbee, then and there, to wit, the 21st day of April aforesaid, in the county and state aforesaid, did fraudulently and willfully withhold, to wit, the sum of $2,226.14, a more particular description of which is to the grand jury unknown, so as to prove a defaulter to the city of Gainesville aforesaid, against the peace and dignity of the state of Florida, and contrary to the statute in such cases made and provided.

There appears in the transcript a bill of particulars filed under the indictment by the state attorney, and it is stated therein that it was demanded by the defendant. The bill consists of a statement of an account of Walter A. Sigsbee as clerk and treasurer of the city of Gainesville from July, 1896, to October 13, 1897. Subsequently defendant filed motions to quash the indictment on grounds to be hereinafter stated, so far as they are relied on here. The motions were denied, and upon arraignment the defendant was found guilty generally by the jury. Motions for a new trial and in arrest of judgment were overruled, and the sentence of the law imposed upon defendant.

The grounds of the motion in arrest of judgment not included in the motion for new trial are:

(1) That the indictment charged defendant with a violation of section 2463, Rev. St., after said section had been repealed.

(2) That at the time defendant was indicted there was no law in Florida against embezzlement by a municipal officer, except chapter 4530, Laws 1897, which was passed after the time of the alleged offense by the defendant, and as to it would be ex post facto.

The legislature amended section 2463, under which the indictment was found in this case, in 1897, by chapter 4530, and the amendatory act declares all laws in conflict with it to be repealed. The amendment does not profess to operate retroactively, or to take away the right of the state to prosecute for a violation of section 2463 before it was amended. The general rule is that in the absence of a saving clause the repeal of a criminal statute carries with it all pending prosecutions thereunder, as well as the right to institute such proceedings. The mischief resulting from repeals without saving the right to prosecute for crimes actually committed became so glaring (Ex parte Pells, 28 Fla. 67, 9 So. 833), that the framers of the amended constitution of 1885 inserted therein the following clause, viz.: 'The repeal or amendment of any criminal statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment.' Article 3, § 32. A prosecution is defined to be 'the means adopted to bring a supposed offender to justice and punishment by due course of law.' 2 Bouv. Law Dict. (Rawle's Revision) 784.

In speaking of the effect of section 32, art. 3, Const. 1885, on repealed criminal statutes, it is said in Raines v State, 42 Fla. ----, 28 So. 57, that it was 'to give to all criminal legislation a prospective effectiveness; that is to say, the repeal or amendment by subsequent legislation of a pre-existing criminal statute does not become effective, either as a repeal or as amendment of such pre-existing statute, in so far as offenses are concerned that have been already committed prior to the taking effect of such repealing or amending law.' This was in harmony with previous views expressed by this court in the cases of Blue v. State, 32 Fla. 53, 13 So. 637, and Reynolds v. State, 33 Fla. 301, 14 So. 723. It is conceded that, if the indictment had been found under section 2463 before it was amended, the decisions referred to would be conclusive against the contention made; but, as the state had not indicted the defendant when chapter 4530 was enacted, it is insisted that a different result should follow. The amendment in 1897 was not retroactive in terms, and can only be applied to cases arising under it subsequently to its taking effect. All criminal offenses...