Smith v. State

• Court: Florida Supreme Court
• Citation: Smith v. State, 93 Fla. 238, 112 So. 70 (Fla. 1927)
• Decision Date: 12 February 1927
• Parties: SMITH v. STATE.

112 So. 70

93 Fla. 238

SMITH v. STATE.

Florida Supreme Court

February 12, 1927

En Banc.

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

Albert Clinton Smith was convicted of embezzlement, and he brings error.

Reversed.

Syllabus by the Court

SYLLABUS

In criminal case, whether bill of particulars shall be furnished on defendant's request rests largely in discretion of trial court. The question of whether a bill of particulars shall be furnished to a defendant upon request by him, or in his behalf, rests largely in the discretion of the trial court.

Power of trial court to require bill of particulars rests on authority of court to requlate conduct of trials; trial court's power to require bill of particulars should always be exercised, if there is danger that justice may not be done if bill is denied; defendant has right to bill of particulars only when indictment does not give him adequate notice of charge which he must meet; in prosecution for embezzlement, bill of particulars held sufficiently definite and certain. The power to direct the furnishing of a bill of particulars does not depend upon any express statutory provision, but upon the general authority of the court to regulate the conduct of trials. The power should always be exercised when there is danger that otherwise a party may be deprived of his rights, or that justice may not be done; but the defendant has a right to such bill of particulars only when the indictment does not give him adequate notice of the charge he is expected to meet.

Whether bill of particulars should be furnished in particular case is within reasonable discretion of trial judge. While there is no doubt of the power of the trial court to direct that a bill of particulars in a criminal case be furnished, yet the question whether it shall or shall not be furnished in the particular case is within the reasonable discretion of the trial judge.

Trial court should not permit evidence of confession to be introduced until sufficient proof of corpus delicti is given if confession is admitted without proof of corpus delicti and subsequent evidence independent of confession justified its admission, error in premature admission is cured. A trial court should not permit the introduction of evidence of a defendant's confession until sufficient proof of the corpus delicti is first given; but if the confession be admitted without such proof, and additional evidence upon that subject is afterwards introduced, independent of the confession, which would have justified the admission of such confession, the error in prematurely admitting it will be cured.

Before defendant can be lawfully convicted, corpus delicti must be established by proof aliunde his confession. Before a person charged with a particular crime can be lawfully found guilty it is necessary to establish the corpus delicti by proof aliunde the confession of the accused.

Purpose of bill of particulars is to advise defendant more fully than indictment or information as to nature of accusation. 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.

Bill of particulars is no part of pleading in criminal case; bill of particulars neither strengthens nor weakens indictment or information, but may narrow indictment as to time within which acts alleged constituting offense may be proved. 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.

When bill of particulars confines embezzlement to particular month, proof of embezzlement during some other month, or some other sources than those specified, will not warrant conviction. When the bill of particulars confines the embezzlement charged in the indictment to a particular month, and confines the property taken to lawful money of the United States coming into the hands of the defendant by reason of his employment from named persons during the month specified, proof of embezzlement during some other month, or of embezzlement of funds derived from other sources than those specified in the bill of particulars, will not warrant a conviction.

COUNSEL

Edgar W. Waybright, of Jacksonville, for plaintiff in error.

J. B. Johnson, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.

OPINION

HARRISON Circuit Judge.

Plaintiff in error was convicted of the offense of embezzlement upon an information charging:

'That Albert Clinton Smith, late of the county of Duval and state of Florida, on the first day of December, in the year of our Lord one thousand nine hundred and twenty-three, in the county and state aforesaid, being then and there the agent and servant of the Georgia Stevedoring Company, a corporation, then and there doing business in Duval county, state of Florida, did then and there, by virtue of his employment as such agent and servant, receive and take into his possession one lot of paper bills and silver coins, of the value of seventy-nine hundred and fifty dollars, of the money and currency of the United States, a more particular description of which said lot of paper bills and silver coins is to your informant unknown, of the money, goods, and chattels of the said Georgia Stevedoring Company, a corporation as aforesaid, and did afterwards, to wit, then and there embezzle and fraudulently convert the same to his own use without the consent of the said Georgia Stevedoring Company, a corporation as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.'

Upon motion for bill of particulars, the county solicitor on September 13, 1924, pursuant to order of the court, filed bill of particulars by which plaintiff in error was informed:

'That said paper bills and silver coins to the amount of seventy-five hundred dollars ($7,500) were during the month of December, A. D. 1923, received and taken into your possession from divers and sundry persons, firms, and corporations, including the Atlantic National Bank of Jacksonville, a corporation transacting and doing business with the said Georgia Stevedoring Company, and paying money to said Georgia Stevedoring Company in and about said transactions, and doing business with said Georgia Stevedoring Company during the month of December, A. D. 1923.'

The bill of particulars further recites the $7,500 was carried by plaintiff in error in the petty cash of the said Georgia Stevedoring Company, and was by him or under his direction entered in the cash book of said company on December 31, A. D. 1923, as a deposit in the Atlantic National Bank of Jacksonville.

It is further set up in the bill of particulars that plaintiff in error, as the clerk, cashier, and bookkeeper of the said Georgia Stevedoring Company, did embezzle and convert to his own use $450 during the months of February and March, A. D. 1924, of moneys received and taken into his possession by virtue of his employment, which was carried by him in cash book as petty cash.

Motion was made for more definite bill of particulars, and amended or additional bill of particulars was filed by which the plaintiff in error was informed:

'The statement or charge made against you in the information herein is the embezzlement and fraudulently converting to your own use one lot of paper bills and silver coins, of the value of $7,950, of the money and currency of the United States, of the money, property, goods, and chattels of the Georgia Stevedoring Company, a corporation organized and existing under and by virtue of the laws of the state of Georgia, and doing business in the county of Duval, and state of Florida; that said lot of paper bills and silver coins were received and taken into your possession by virtue of your employment as clerk, cashier, and bookkeeper of said Georgia Stevedoring Company, a corporation as aforesaid; that said paper bills and silver coins to the amount of $7,500 was during the month of December, A. D. 1923, received and taken into your possession from the Atlantic National Bank of Jacksonville, a corporation, and from divers and sundry other persons, firms, and corporations, whose name or names, address or addresses, is or are to the county solicitor unknown, transacting and doing business with the said Georgia Stevedoring Company, and paying money to the said Georgia Stevedoring Company in and about said transactions and doing business with the said Georgia Stevedoring Company during said month of December, 1923.'

The bill of particulars then, as in the former b...