Thalheim v. State

• Decision Date: 18 November 1896
• Citation: 38 Fla. 169,20 So. 938
• Parties: THALHEIM v. STATE.
• Court: Florida Supreme Court

20 So. 938

38 Fla. 169

THALHEIM v. STATE.

Florida Supreme Court

November 18, 1896

Error to circuit court, Marion county; W. A. Hocker, Judge.

Carl Thalheim was convicted of embezzlement, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An indictment may contain only a general allegation of an offense, wanting in details, of which the defendant is justly entitled to be informed before trial, if it is in conformity to the statutory requirement upon the subject. In such cases upon a showing that the same is necessary for the proper administration of justice, the court should order the defendant to be furnished with a bill of particulars of the alleged offense.

2. The power to direct the furnishing of a bill of particulars under the circumstances stated in the preceding headnote 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.

3. An indictment for embezzlement under our statute permitting it to allege the offense in a general way is a case where a bill of particulars should be furnished to the defendant upon proper application by him.

4. To give any other construction to the law than is given in the three preceding headnotes would be in conflict with the eleventh section of the bill of rights of our state constitution, which provides that 'in all criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation against him.'

5. 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.

6. A reference to a paper filed in another court of inferior jurisdiction, in which the details of the offense are stated is not the furnishing of a bill of particulars, in the meaning of the law. It should be furnished and filed in the case pending, and in the court to which the application is made.

7. A public prosecution for a criminal offense must be conducted by the proper official representative of the state, and must not under any circumstances be placed under the entire management and control of private parties or their attorneys. It is proper, however, for the state attorney, when there is no express statutory prohibition, to obtain, with the consent of the court, the assistance of other counsel; and other members of the bar are not incompetent to be engaged for such assistance, and taking part in the trial, by reason of being retained and paid by private persons. When such assistants are employed in the case, the state attorney should always remain present at the trial, and see that a public prosecution does not degenerate into a private persecution and that the administration of the criminal law is not made a vehicle of oppression for the gratification of private malice, or the accomplishment of private gain or advantage.

8. No question of error in any ruling of the trial court in the trial of a case can be considered where the ruling complained of was not duly excepted to.

9. The number of counsel who will be permitted to assist the state attorney in the prosecution of a criminal case, and engage in the trial thereof, must be determined by the trial court, and is a matter within the discretion of such court.

10. This court will take no notice of any fact which only appears in the record as a recital in a motion.

11. A written instrument was offered in evidence by the state, with proof that it had been fraudulently altered since it was executed. A state witness testified that he was familiar with the handwriting of the defendant; had often seen him write and, while it was difficult to state positively that the fraudulent alteration was in the hendwriting of the defendant, yet upon good faith, and upon his knowledge, it was. Upon these facts, held, that a contention that the instrument was received in evidence without proof that the fraudulent alteration was in the handwriting of the defendant cannot be sustained, as the proof of handwriting must always be more or less a matter of opinion.

12. Upon an indictment for embezzlement of moneys of his principal, coming to his hands as an agent, letters found in the office recently occupied and vacated by the defendant, and in letter files kept by him, in the handwriting of the officers of such principal, the same being a corporation, and touching the matter of the agency of the defendant, where such letters appear to have been invited by other letters from the defendant, and appear to have been acted upon in the course of the agency, are admissible in evidence against such defendant. They are relevant testimony upon the agency of the defendant, which was a material fact to be established in the case.

13. Counsel for the state, during the progress of the trial, several times made statements as to what they expected to prove during the course of the trial. Upon objection being made by defendants's counsel, the trial judge cautioned the jury that they must not regard such statements as evidence, and should only consider what was actually proven by the evidence in the case. Held that, if it be admitted that the statements objected to were improper to be made, the caution of the court to the jury and the instructions given cured the prejudice, and divested such statements of any power to injure the defendant.

14. A witness at the trial, in April, 1896, testified that he was present when a Mr. Horney, a director of the corporation, principal of the defendant, Thalheim, called upon said defendant at the office occupied by him (defendant) on September 18, 1894, and demanded the books, papers, and other property of the corporation, and that defendant turned over some of the property demanded, but refused to turn over other parts of it, claiming that they were his private property. On cross-examination the witness was asked: 'Do you know whether or not Mr. Horney and Mr. Thalheim made a settlement of the affairs of that office?' This question, not being limited to the occasion about which the witness had testified in chief, but being broad enough to cover any settlement within the knowledge of the witness made up to the very time the question was asked, was too general in its terms to be considered in cross-examination, and was properly excluded.

15. A defendant in a criminal case cannot cross-examine a state witness about matters as to which he had not testified in his direct examination.

16. When the state has offered evidence of inculpatory statements made by the defendant, the defendant, on cross-examination, has the right to show other exculpatory statements made by him in the same conversation, and in reference to the same subject-matter. The defendant, in such a state of the case, is entitled to have before the jury all that was said upon the subject upon the particular occasion, whether prejudicial or beneficial to him.

17. The fact that an agent who has embezzled his principal's funds has settled the matter, and restored or returned the embezzled funds, does not affect the question of his guilt.

18. The act under which the defendant was tried provides that evidence may be given of any embezzlement committed within six months after the time stated in the indictment. The effect of this act is only to exclude proof of an actual embezzlement not committed within the prescribed period. It does not exclude proof of any fact or circumstance which tends to prove the main issues in the case, for the reason that such fact or circumstance itself may have happened before the date alleged.

19. Upon an indictment for embezzlement of the money of a foreign corporation, proof that such corporation was a corporation de facto, doing business as a corporation in the corporate name set out in the indictment, is sufficient. It is not necessary that it should be proven to be a corporation de jure.

20. A charge of the court to the jury, which admits of the construction that a defendant on trial for embezzlement could be convicted if the evidence shows that he embezzled other and different property than that for which he was indicted, is erroneous.

21. Under our statute (Rev. St. s 2897), upon an indictment for embezzlement of money, 'it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a variance, if it be proved that any bullion, money, notes, bank notes, check, draft, bill of exchange or other security for money * * * was fraudulently embezzled'; but the indictment can only be sustained upon proof of embezzlement of some of the specific things mentioned in the statute. The defendant cannot upon such an indictment be convicted because the proof shows the embezzlement of other assets or property not within the terms of the statute.

22. Under our statute in force at the time the offense in the present case is charged to have been committed, embezzlement of property of the value of $100 or more subjects the guilty party to a higher and greater punishment than embezzlement of property of a less value. Therefore, upon an indictment which charged the value of the property embezzled as exceeding $100, it is essential that the jury, in a verdict of guilty should ascertain and fix the value of the property sufficiently to show whether it was $100 or more, or whether it was less than said sum, in order that the...