State v. Shouse

• Decision Date: 06 August 1965
• Docket Number: No. 5361,5361
• Citation: 177 So.2d 724
• Parties: STATE of Florida, Appellant, v. Robert G. SHOUSE and Shouse Enterprises, Inc., a Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 724

177 So.2d 724

STATE of Florida, Appellant, v. Robert G. SHOUSE and Shouse Enterprises, Inc., a Corporation, Appellees.

No. 5361.

District Court of Appeal of Florida, Second District.

Aug. 6, 1965.

Frank Schaub, State Atty., Sarasota, for appellant.

Frank B. Watson, Jr., of Roberts, Watson, Taylor & Friday, Fort Myers, for appellees.

SMITH, Judge.

The state appeals an order quashing an jointly charging the corporate defendant and the individual defendant with embezzlement in violation of § 84.07(3) of the Uniform Mechanics' Lien Law, Fla.Stats.1961, F.S.A. The order appealed authorizes the state to file an amended information. We reverse the order quashing the information on the ground that an information otherwise charging a corporation and an individual with embezzlement substantially in the language of § 84.07(3), Fla.Stats.1961, F.S.A., need not also specify that either defendant was acting as an 'architect, landscape architect, engineer, contractor, subcontractor, or other person.' We also grant certiorari and quash that part of the order appealed which requires the state to permit inspection and copying of sworn statements of prospective witnesses for the state.

The embezzlement charge does not expressly allege that the corporate defendant, the individual defendant or either of them, was an 'architect, landscape architect, engineer, contractor, subcontractor, or other person' as set forth in the statute. In all other respects the information alleges embezzlement substantially in the language of § 84.07(3) of the Uniform Mechanics' Lien Law, Fla.Stats.1961, F.S.A., which provided, in part, as follows:

'Any architect, landscape architect, engineer, contractor, subcontractor, or other person ¹ who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or services performed on or materials furnished by his order for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of embezzlement * * *.'

Appellees contend, in effect, that this section applied only to an individual or entity which was capable of obtaining a lien under Chapter 84, Fla.Stats.1961, F.S.A., such as a 'contractor' or 'sub-contractor' and that an officer or agent of a corporate contractor or subcontractor, for example, is immune from criminal liability even though he personally committed or expressly authorized thorized the acts constituting the offense. We do not agree.

A corporation may be held criminally liable, e. g., for obtaining money by false pretenses, criminal conspiracy, grand larceny or similar offense, even though the acts constituting the crime are ultra vires and the offense involves a specific intent. ² The fact that a corporation may be held criminally liable for embezzlement of property of a third person, does not, of itself, render immune from prosecution an officer or employee who committed or authorized the corporate acts constituting the offense. ³ We need not decide the nature or type of evidence required to sustain a conviction of a corporation or corporate officer under the act. We also need not decide whether the state is required to make an election between a corporation and its officer, and, if so, at what stage such election must be made. The only question raised by the present appeal is whether a corporate officer or other agent of a corporate contractor, for example, is criminally liable under the act. Our decision in Fiske v. State, Fla.App.1958, 106 So.2d 586, does not render such a person immune. In that case an information charged an individual defendant with being 'a contractor as defined by Fla.Stats.1955, 84.01 [F.S.A.]'. However, the proofs disclosed that a corporation of which he was president was the actual contractor. Whether or not a conviction would have been sustainable on a proper information and proof that the defendant personally committed or authorized corporate acts constituting an embezzlement was neither raised nor decided. The subsequent decision of the Third District in Conger v. State, Fla.App.1961, 130 So.2d 292, also is distinguishable. The information in that case charged an individual with 'being a sub-contractor', but the proofs disclosed the actual subcontractor was a corporation of which the defendant was president. We consider inapplicable to the present case, in which the corporation and its presiding officer have been jointly charged with embezzlement without specifying which, if either, was contractor or subcontractor, the following statements in the Conger case which seem to imply (1) that an individual cannot be charged 'as an officer, with the personal performance of an act as the head of a corporation which gave rise to a violation of the law,' (2) that he cannot be 'made responsible for his act * * * in a representative capacity,' and (3) that 'he could not be charged personally for the actions which he committed as an officer of the corporation * * *.' As stated by the Third District in an earlier decision, Silvestri v. State, Fla.App.1960, 122 So.2d 502 at page 503:

'The crime defined in the statute while similar to embezzlement actually depends upon elements different from those constituting the crime of embezzlement as defined in Chapter 812, Fla.Stat., F.S.A. An analysis of the statute, the violation of which is charged here, reveals that the defendant must: 1) be an architect, landscape architect, engineer, contractor, subcontractor or other person (holding funds under similar duty to apply the same), 2) who, with intent to defraud, 3) shall use the proceeds of any payment made to him on account of improving certain real property, for any other purpose than to pay for labor or services performed or materials furnished by his order for this specific improvement, 4) while any amount for which he may be or become liable for such labor, services or materials remains unpaid.' (Emphasis added.)

The evidence in the Silvestri case disclosed a misuse of funds with intent to defraud by a corporate contractor acting by and through its chief executive officer, who was not a party to the appeal. Evidence that the individual appellant endorsed a check as secretary and treasurer of the corporation was held insufficient to sustain a conviction of that defendant. The opinion in the Silvestri case strongly implies, and we expressly hold, that a corporate officer who, with intent to defraud, personally performed or authorized acts constituting embezzlement under § 84.07(3), supra, is individually liable even though the acts were performed in a representative capacity on behalf of a corporate contractor. Ordinarily, an indictment for embezzlement clearly should state the agency or particular fiduciary relation of the accused. 11 Fla.Jur., Embezzlement § 42 citing 18 Am.Jur., Embezzlement § 47. However, an information which alleges that a defendant performed the acts described in § 84.07(3), supra, clearly states the particular fiduciary relation involved in this type of embezzlement. Such an information also clearly states a prohibited breach of that fiduciary relation. Proof of acts so alleged establishes a prohibited misapplication of funds in violation of the statute whether the defendant was acting as a contractor, as an officer of a corporate contractor, or as some 'other person' holding or controlling funds under a duty similar to that of a contractor. Since the exact status of the defendant is immaterial, it need not be pleaded. ⁴ Our holding as to the embezzlement count applies equally to the count charging conspiracy to commit embezzlement and conspiracy to commit perjury in violation of § 84.08, Fla.Stats.1961, F.S.A. ⁵ However since the questions are not raised, we have not considered and expressly do not decide whether a corporation and one of its officers may be convicted of conspiring together and, if so, what evidence is required to sustain such a conviction.

The order appealed also directs the state to (1) disclose to the defendants the names of persons it intends to use as witnesses at the trial, (2) submit for inspection and copying by the defendants all sworn statements of such witnesses taken by the state, and (3) similarly submit all documents and legal papers which the state intends to use at the trial. This part of the order is not such an order as will support an appeal by the state. Section 924.07, Fla.Stats., F.S.A. An order quashing an information may be appealed by the state pursuant to the foregoing statute but such an order is not a final judgment by which this court may on appeal review all prior interlocutory orders. We do, however, have authority to entertain petitions by the state for common law certiorari in criminal proceedings. State v. Harris, Fla.1962, 136 So.2d 633, 91 A.L.R.2d 1088. We therefore treat the state's assignments of error and points on appeal pertaining to the discovery portions of the order as the state's petition for certiorari and accordingly so limit the scope of our review. Girten v. Bouvier, Fla.App.1963, 155 So.2d 745.

Section 906.29, Fla.Stats., F.S.A., relieves the state of any need to follow the custom of endorsing on informations and indictments the names of witnesses on whose evidence the same are based. Additionally, it authorizes the trial court on motion of the defendant to require the state to disclose the names of such witnesses.

Although there is nothing in this statute which authorizes disclosure of the names of witnesses whom the state intends to use at the trial, the Supreme Court has held that an order requiring such a disclosure may be entered in the discretion of the trial judge. See Shields v. State, Fla.1953, 64 So.2d 271. We therefore decline to quash that part of the order which directs the state to disclose to the defendants the names of persons it intends to use as...