Silver v. State, F-302

• Decision Date: 16 March 1965
• Docket Number: No. F-302,F-302
• Citation: 174 So.2d 91
• Parties: Sam SILVER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 91

174 So.2d 91

Sam SILVER, Appellant, v. STATE of Florida, Appellee.

No. F-302.

District Court of Appeal of Florida, First District.

March 16, 1965.

Rehearing Denied May 4, 1965.

Albert Datz, Jacksonville, for appellant.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

STURGIS, Chief Judge.

Sam Silver, the appellant, was tried by jury and convicted of grand larceny in one of its several forms prescribed by Section 811.021, Florida Statutes 1961, F.S.A., hence this appeal.

The information charged, in substance, that Silver, with intent to deprive and defraud one John Henry Johnson of his property, of the value of more than $100.00, unlawfully obtained Johnson's signature to a mortgage deed and promissory note, the false making whereof would be punishable as forgery under the laws of Florida.

Appellant's brief frames and argues six points of law upon which he relies for reversal, in brief:

1. That Section 811.021, Florida Statutes 1961, F.S.A., as it relates to the crime charged, violates Section 12, Declaration of Rights, Construction of Florida, F.S.A., and Amemdment XIV, Constitution of the United States, in that it fails to clearly and definitely set a standard of guilt.

2. That said phase of the statute is constitutionally infirm for failure to clearly and definitely establish 'a rational relationship between the crime and the punishment provided for therein.'

3. That it was prejudicial error to deny appellant's motion to strike all evidence of the state relating to the value of the work performed by appellant in consideration of the note and mortgage signed by the prosecuting witness.

4. That the evidence is insufficient to support the verdict of guilty.

5. That it was prejudicial error to exclude from evidence a newspaper subscription signed by the prosecuting witness.

6. That the court erred in failing, of its own motion, to instruct the jury as to petit larceny.

We note, at the outset, that counsel for appellant has failed to specify in conjunction with the respective points of law argued, the particular assignments of error that give rise thereto, as required by Florida Appellate Rule 3.7(f)(4), 31 F.S.A. We often indulge such violations when committed by laymen appearing in proper person, but for obvious reasons the professional pleader is not entitled to such compassion. His appearance as counsel implies familiarity with and a compact to comply with the rules of appellate practice and procedure. Although we refrain from imposing any penalty in this instance, it must be understood that we do expect full compliance with the rules and that this forbearance is not to be taken as precedent for future violations.

The purpose of the rule and the disruptive effect of its violation is typified in this case. It is seen that the first two points of law involved are addressed to matters touching upon the constitutionality of a part of F.S. § 811.021, F.S.A. Because of the briefer's failure to identify the applicable assignments of error, it became necessary for the appellee to ferret out of the trial record the transactions upon which appellant presumably relied as a predicate for said points of law and become advised of the fact that the constitutional question (a) was never presented in the trial court and (b) first appeared in the guise of an assignment of error on this appeal.

Assignments of error should designate identified judicial acts in the order of occurrence (Florida Appellate Rule 3.5 [c]) and generally will not be considered unless based on the record on appeal (Florida Appellate Rule 3.3). State v. Brown, 118 So.2d 574 (Fla.App.1960); Everett v. State, 97 So.2d 241 (Fla.1957); McRainey v. Langston, 92 Fla. 903, 110 So. 536 (1926); Caldwell v. People's Bank, 73 Fla.1165, 75 So. 848 (1917); Daly v. State, 67 Fla. 1, 64 So. 358 (1914). An exception is found where the fundamental rights of a litigant are involved. In civil cases the Florida Supreme Court has considered the constitutionality of the controlling statute. Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843, 845 (1945); Parker v. Town of Callahan, 115 Fla. 266, 156 So. 334, 336 (1933). It is axiomatic that the exception should be applied in cases involving the personal liberty of the individual, and it is on that basis that we accept the responsibility of considering the constitutional issues presented.

We find no merit in appellant's challenge of the constitutionality of F.S. § 811.021, F.S.A., as it relates to the crime charged. The statute clearly defines one of the inhibited forms of larceny as the act of obtaining the signature of any person to a written instrument, the false making whereof would be punishable as forgery, with intent to deprive or defraud the true owner of his property or the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person. If the subject property is of the value of $100.00 or more, the offense is defined as grand larceny, and if of less than that value as petit larceny. The offense of larceny as here charged is a species of obtaining property by false pretenses and is based on the act of obtaining the rightful owner's signature to an instrument the false making whereof would constitute forgery, with unlawful intent as aforesaid. The wrongful appropriation of property as thus contemplated is related to common law larceny as developed by the English courts and acts of Parliament which were imported into this county; more specifically to larceny by trick, in which the wrongdoer gains possession of the property of another through a consent that was fraudulently obtained. Rex v. Pear, 1 Leach 212, 168 Eng.Rep. 208; 6 Harv.L.Rev. at p. 248 (1892).

In the case of Rosengarten v. State of Florida, 171 So.2d 591 (District Court of Appeal, Second District, State of Florida, 1965), Smith, J., speaking for the court, made a learned analysis of the so-called 'Consolidated Larceny Statute,' 9 U.Fla.L.Rev. 209 (1956). In that case, as here, the court was dealing with the effect of the statute in its relation to the former crime of obtaining property by false pretenses, which has been merged as one of the theft offenses covered by F.S. § 811.021, F.S.A. It would be presumptuous to attempt to elaborate upon the principles of law enunciated in that opinion which clearly delineates the application of our statute to charges involving the taking of property of another by means of false pretenses.

Anglin v. Mayo, 88 So.2d 918 (Fla.1956), establishes that Chapter 26912, Laws of Florida, 1951, now cited as Section 811.021, superseded prior Section 817.01, Florida Statutes, F.S.A., defining the crime of obtaining property by false pretenses, which read in part as follows:

'Whoever designedly by a false pretense, or by a privy or false token, and with intent to defraud, obtains from another person any property, or obtains with such intent the signature of any person to a written instrument, the false making whereof would be punishable as forgery, shall be punished by imprisonment in the state prison not exceeding ten years, or by fine not exceeding five hundred dollars.'

A comparison of F.S. § 811.021, F.S.A. with the forner statute reveals that both statutes define in substantially the same language the crime of which appellant stands convicted. In Anglin v. Mayo, supra, the Florida Supreme Court quoted with approval the following excerpt from the reported opinion of the Circuit Judge in Thomason v. American Fire & Casualty Co., 5 Fla.Supp. 129:

'The real purpose of the statute was to eliminate technical distinctions between the offenses of larceny, embezzlement and obtaining money under false pretenses. Prior to the enactment thereof in 1951 it was not uncommon for a criminal prosecution to become confused and sometimes result in a miscarriage of justice because of the fine line of demarcation between these offenses as they had previously been defined by the legislature and the courts. The history of the times and of the particular legislation involved clearly indicates that the intent of the legislature was to eliminate this confusion and to simplify prosecutions involving the wrongful and criminal acquisition by one person of the property of another.'

Appellant also insists that the court committed reversible error in refusing to grant his motion to strike all evidence of the state touching upon the value of the work done and materials furnished by appellant upon the prosecuting witness's premises. The transaction incident to which the alleged offense occurred involved a proposal of the appellant, originally made by his agent and later paticipated in by him, for certain repairs to be made by appellant upon a dwelling owned by the prosecuting witness, an aged negro who lived alone and who, according to his testimony, was able to sign his name but was unable to read or write. He testified that the promissory note and mortgage to which he subscribed his name was represented to him by appellant's agent to be a receipt evidencing the work done or to be done on the premises and the state's evidence is to the effect that the repairs had a value not in excess of $175.00. It developed, however, that the instruments actually signed were a promissory note for $1,795.00 and a mortgage on his home purporting to secure the same; and the evidence is reality susceptible of the conclusion that appellant with knowledge of the stated background undertook to enforce the same according to their tenor and effect.

As criminal intent, active or imputed, is an essential element of the crime charged, it was necessary for the state to establish that the signature of John Henry Johnson was obtained in furtherance of an unlawful design to fraudulently...