Strobhar v. State

• Decision Date: 11 July 1908
• Citation: 47 So. 4,55 Fla. 167
• Parties: STROBHAR v. STATE. [*]
• Court: Florida Supreme Court

47 So. 4

55 Fla. 167

STROBHAR v. STATE. ^[*]

Florida Supreme Court, Division B.

July 11, 1908

STATE. ^[*] April 15 1908.

Headnotes Filed July 11, 1908.

Error to Circuit Court, Alachua County; James T. Wills, Judge.

James N. Strobhar was convicted of embezzlement, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In a prosecution for embezzlement, it is sufficient for the indictment to charge that the property embezzled came into the defendant's possession, and was under his care 'by nature of' his employment, although the statute makes it a crime to embezzle property which came into his possession and was under his care 'by reason of' his said employment.

In an indictment for embezzlement, it is sufficient to describe the defendant as a servant or agent, the terms used in the statute, without setting out in detail his duties or the purposes for which he was employed.

In an indictment for embezzlement, the words, 'of which corporation he, the said J. N. S., was then and there the servant and agent,' is a sufficient allegation that the defendant was the servant and agent of the corporation previously named.

In an indictment for embezzlement, ownership of personal property is usually alleged by using the words 'of the moneys of' the owner, or 'of the property of,' or 'of the goods and chattels of.' The words 'belonging to' are sufficient.

Bad grammar does not render an indictment ill. A relative pronoun must be referred to that antecedent to which the tenor of the instrument and the principles of law require that it should relate, whether exactly according to the rules of syntax or not. In other respects, also, the court, for determining the meaning, will consult sound sense to the disregard of captious objections; and of two otherwise permissible renderings it will accept the one sustaining the proceeding.

Where the grand jury does not know the specific description of money alleged to have been embezzled, it may so aver, and the allegation of the embezzlement of a stated number of dollars followed by the statement that a more particular description thereof is unknown to the indicting grand jury, is all that is required to make the description sufficient.

No indictment will be quashed on account of any defect in its form unless it is so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

If a statute makes it punishable to do a particular thing specified, 'or' another thing, 'or' another one commits the offense who does any one of the things, or any two, or more, or all of them. The indictment may charge him with any one, or with any larger number at the election of the pleader, employing, if the allegation is of more than one, the conjunction 'and' where 'or' occurs in the statute.

Where a plea of autrefois acquit is plainly frivolous and trifling it may be stricken out on motion; and where the plea, if true, fails to state any reason why the defendant could not again be tried for said offense, it will be treated as a nullity and frivolous, and stricken out on motion. A demurrer is not necessary to dispose of such a plea.

The plea of autrefois acquit consists partly of matter of record and partly of matter of fact. The matter of record is the former indictment and acquittal or conviction, and the matter of fact is the averment of the identity of the offense and of the person.

To constitute a former jeopardy, the court in which the former prosecution took place must have had jurisdiction of the offense and of the person of the defendant; otherwise, its judgment must be null and void.

While it is true that a person shall not be subject for the same offense to be twice put in jeopardy, yet an acquittal in Georgia for a crime against the sovereignty of the state of Florida alone cannot in any legal sense constitute that jeopardy.

Where an offense was committed both in Georgia and Florida, and was a transgression against the laws of both states, an acquittal or conviction in the state of Georgia for a violation of its laws will not prevent a prosecution in the state of Florida for the act in violation of the laws of the latter state.

The title to chapter 4395, p. 159, Acts 1895, which reads, as shown from the enrolled bill in the office of the Secretary of State, 'An act to amend section 2440 and 2441 of the Revised Statutes of the state of Florida, defining and punishing grand and petit larceny,' is sufficiently broad to embrace the subject of grand larceny, and the act, therefore, is not in violation of section 16 of article 3 of the Constitution of 1885.

Assignments of error that 'the court erred in overruling defendant's objections to the admissibility in the several instances during the progress of the trial as shown by the record of the testimony' are too general, and will not be considered.

The trial court did not err in refusing to give the following instruction requested by the defendant: 'The court instructs the jury that upon the trial of a criminal cause, if a reasonable doubt of any facts necessary to convict the accused is raised in the minds of the jury by the evidence itself, or by the ingenuity of counsel, upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner's acquittal.'

The true view of the position of counsel before the jury is that of aids or helps. The duties of the advocate are among the most elevated functions of humanity. Whilst he is the representative of his client's cause, yet these considerations insure all honorable advocacy. His business is to comment on the evidence, to sift, compare, and collate the facts, to draw his illustrations from the whole circle of the sciences, to reason with the accuracy and power of the trained logician, and enforce his cause with all the inspirations of genius and adorn it with all the attributes of eloquence.

Having already given in substance and effect an instruction requested by the defendant, the trial judge cannot be required to repeat the same idea in different language.

Where the evidence is legally sufficient to support the verdict, the appellate court will not disturb the verdict.

COUNSEL

Clark & Fielding, Robt. W. Davis, and B. A. Thrasher, for plaintiff in error.

W. H. Ellis, Atty. Gen., J. M. Rivers, State Atty., and Syd L. Carter, for the State.

OPINION

PARKHILL J.

The plaintiff in error, James N. Strobhar, who will be called the defendant elsewhere in this opinion, was convicted of the crime of embezzlement, and seeks relief here by writ of error.

The indictment, omitting the formal parts, is as follows: 'The grand jurors of the state of Florida, inquiring in and for the body of the county of Alachua, upon their oaths, do present that James N. Strobhar, late of the county of Alachua aforesaid, in the circuit and state aforesaid, laborer, on the 28th day of August, in the year of our Lord one thousand nine hundred and five, with force and arms, at and in the county of Alachua aforesaid, did embezzle and fraudulently convert to his own use certain money of the Atlantic Coast Line Railroad Company, a corporation created and existing under the laws of the state of Virginia, and doing business in the said county of Alachua and state of Florida, of which corporation he, the said James N. Strobhar, was then and there the servant and agent, without the consent of said corporation, to wit, seven thousand, five hundred dollars, of the value of seven thousand, five hundred dollars, of the money and property of said corporation, a more particular description of which is to the grand jurors unknown, which on said 28th day of August, A. D. 1905, in said county of Alachua and state of Florida, came into the possession of him, the said James N. Strobhar, and was then and there under his care by nature of his said employment as such agent and servant, against the form of the statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the state of Florida.'

The first error assigned is the overruling of a motion to quash the indictment. In support of this assignment of error, it is urged that the indictment is defective because it charges that the money embezzled came into the defendant's possession by nature of his said employment, following the language of section 2457, Rev. St. 1892, the contention being made that the indictment should charge that money embezzled came into defendant's possession by reason of his said employment, as required by the terms of the act of 1903. Acts 1903, p. 96, c. 5160. It is clear that the last-mentioned act repealed section 2457, Rev. St. 1892, because the subsequent enactment was a revision of the subject-matter of the former statute, and was evidently intended as a substitute for it. We are quite sure, however, that the phrase, 'by nature of,' which is the language of the indictment, is equivalent to the phrase, 'by reason of,' which is the language of the existing statute, and that is sufficient. Humphreys v. State, 17 Fla. 381; 7 Ency. Pl. & Pr 423. Nature is defined as meaning character, sort, or kind. Standard Dictionary; State v. Murphy, 23 Nev. 390, 48 P. 628. The expression, 'by nature of his employment,' means through the character of his employment, or 'by reason of,' or on account of his employment. And so allegations that the property then and there came to the 'possession' of the defendant 'by virtue of such employment' have been held to be sufficient, although the statute makes it a crime for any one to fraudulently convert property 'under his care.' Ker...