Smith v. State
| Decision Date | 18 May 1916 |
| Citation | 71 So. 915,71 Fla. 639 |
| Parties | SMITH v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; E. C. Love, Judge.
J. A Smith was convicted of malpractice in office, and brings error. Reversed and remanded.
Syllabus by the Court
While secondary evidence should not be admitted in substitution for primary evidence, yet where the evidence offered is primary or original in its character, it should not be excluded because there might have been introduced other primary evidence that is corroborative or stronger and more conclusive.
Secondary evidence of the contents of records may be given when such records are destroyed.
While all common-law crimes consist of two elements, the criminal act or omission, and the mental element, commonly called criminal intent, it is within the power of the Legislature to dispense with the necessity for a criminal intent, and to punish particular acts without regard to the mental attitude of the doer.
A failure of a justice of the peace to pay over to the county treasurer within ten days after the receipt thereof all fines collected by him as such magistrate, without excuse for such failure, is a violation of section 4035, Gen. St. 1906, and such failure, whether the result of willfulness or negligence, may be regarded as 'malpractice in office' within the meaning of section 3481, Gen. St 1906.
The word 'willfully' as used in Gen. St. 1906, s 3481, is a part of the definition of the offense of extortion, and does not, by construction, become an element of the offense of 'any malpractice in office not otherwise especially provided for,' condemned in the same section.
Where a sentence pronounced in a criminal case is not in substantial compliance with statutory requirements, the judgment will be reversed and the cause remanded for a proper sentence.
COUNSEL Smith & Davis and Will H. Price, all of Marianna, for plaintiff in error.
T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
This writ of error was taken to a conviction of the statutory offense of 'malpractice in office' in neglecting to pay over to the county treasurer, within ten days after the receipt of same, money received and collected by the accused as justice of the peace in payments of fines imposed upon convictions before the justice of the peace. Section 3481 Gen. Stats. of 1906; section 3481, Compiled Laws of 1914.
A witness for the state testified that the accused kept a docket as justice of the peace; that a part of the docket The court asked the state attorney, 'Have you got the docket?' Answer, 'No, sir; have never been able to get it.'
Witnesses for the state were asked questions as to the conviction and fines of the named persons before the defendant as justice of the peace. These questions were objected to by counsel for the defendant on the ground that the record is the best evidence, and there is no proper showing that the record was lost or destroyed. The objections were overruled and exceptions taken.
While secondary evidence should not be admitted in substitution for primary evidence, yet where the evidence offered is primary or original in its character, it should not be excluded because there might have been introduced other primary evidence that is corroborative or stronger and more conclusive. 17 Cyc. 467; 10 R. C. L. 903.
Secondary evidence of the contents of records may be given when such records are destroyed. See 10 R. C. L. 915; Williams v Richardson, 66 Fla. 234, 63 So. 446; 17 Cyc. 523.
Under the circumstances of this case there was no improper substitution of secondary for primary evidence, and there was no error in admitting original, positive, and independent oral testimony as to the convictions and the imposition and collections of fines by the defendant when acting as a justice of the peace. The record may have been in the custody of the defendant who made it.
The statute provides:
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Ex Parte Amos
... ... willfully charging, receiving, or collecting greater fees by ... any officer of the state than he is entitled to charge, ... receive, or collect by law, and 'malpractice in office ... not otherwise especially provided for.' ... To the ... same effect are: In re Robinson, 73 Fla. 1068, 75 ... So. 604, L. R. A. 1918B, 1148; Thorp v. Smith, 64 ... Fla. 154, 59 So. 193; Hardee v. Brown, 56 Fla. 377, ... 47 So. 834; Kinkaid v. Jackson, 66Fla. 378, 63 So ... 706; Pounds v ... ...
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State v. Gray
...84 (1939); State ex rel. Lanz v. Dowling, 92 Fla. 848, 110 So. 522 (1926); King v. State, 85 Fla. 257, 95 So. 567 (1923); Smith v. State, 71 Fla. 639, 71 So. 915 (1916); Mills v. State, 58 Fla. 74, 51 So. 278 (1910); McCaskill v. State, 55 Fla. 117, 45 So. 843 (1908); Allen v. State, 124 So......
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State v. Oxx, 81-990
...Fla. 848, 110 So. 522 (1926) (disposing of personal property that is subject to a lien without the lienee's permission); Smith v. State, 71 Fla. 639, 71 So. 915 (1916) (statute prohibiting malpractice in office); Mills v. State, 58 Fla. 74, 51 So. 278 (1910) (selling property subject to lie......
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State v. Wershow, 50077
...may make certain described activities criminal offenses without requiring that they be committed willfully. In Smith v. State, 71 Fla. 639, 71 So. 915 (1916), this court 'While all common-law crimes consist of two elements--the criminal act or omission, and the mental element, commonly call......