Varnum v. State
| Decision Date | 28 April 1939 |
| Citation | 188 So. 346,137 Fla. 438 |
| Parties | VARNUM v. STATE. |
| Court | Florida Supreme Court |
Error to Court of Record, Escambia County; A. G. Campbell, Judge.
J. H Varnum was convicted as an accessory before the fact of the crime of obtaining money and property by false pretenses, and he brings error.
Reversed and new trial granted.
J. McHenry Jones and Harry Botts, both of Pensacola for plaintiff in error.
George Couper Gibbs, Atty. Gen., and Thomas J Ellis, Asst. Atty. Gen., for the State.
The plaintiff in error, J. H. Varnum, on the 18th day of July 1938, was informed against by the County Solicitor of Escambia County, Florida, and charged with the substantive felony of accessory before the fact to the crime of obtaining money and property by false pretenses. He was duly arraigned, tried, convicted, and sentenced to the State Prison for a period of two years at hard labor. While the information presented contained two counts, the issues were presented to the jury on the first count of the information.
Counsel for plaintiff in error attacked the first count of the information by motion to quash containing several grounds, and after the rendition of the verdict, moved the Court to arrest the judgment on grounds substantially as appeared in the motion to quash. We do not think Count One of the information is fatally defective, nor is it subject to the criticisms offered by the grounds of the motion to quash, but it clearly charges a substantive felony of accessory before the fact. See Section 7111, C.G.L.; In re Vann, Fla., 186 So. 424; Neumann v. State, 116 Fla. 98, 156 So. 237; Kauz v. State, 98 Fla. 687, 124 So. 177; Pope v. State, 84 Fla. 428, 94 So. 865; Albritton v. State, 32 Fla. 358, 13 So. 955.
The evidence appearing in the record shows that J. H. Varnum was Superintendent of Public Instruction of Escambia County, Florida, for some time prior to July 20, 1936, and the School Board of Escambia County expended some $35,000 to $40,000, annually, in the repair of school buildings of the County, and the Superintendent, by custom or specific instruction from the School Board, from time to time in its behalf, purchased materials necessary to repair the buildings owned by the County of Escambia and used for school purposes. It was his practice to buy the materials when necessity required and invoices of the purchases were or would be sent to him when he or some employee of the office would place the invoices on a filing hook in the Superintendent's office and there kept until the School Board accumulated the money by which the invoices could be retired or paid. There existed a practice for the Superintendent to approve invoices in behalf of the School Board of Escambia County when it was not in session and for him to deliver the invoices to the owner, who would in turn discount the same at a bank, and in the usual course of dealings the invoice so discounted with the bank would by the Board of Public Instruction of Escambia County be retired or paid by the School Board when in session. The evidence shows instances of a loose, slipshod and careless method prevailing in the office of the Superintendent of Public Istruction as to keeping a record of invoices to be presented to it for payment, and the defendant here failed to keep a record of the invoices, nor was any particular clerk in the office assigned the duty or responsibility to keep an accurate record and filing system of the invoices coming into the office prior to July, 1936.
The principal informed against in this case is Ferrell McDonald and he was engaged in the hardware business in the City of Pensacola prior to July 20, 1936, under the name of Coast Hardware Company. His business was destroyed by fire and he subsequently went through bankruptcy proceedings. A Mr. Armour was held to be a partner in business of Coast Hardware Company, and Mr. McDonald and Mr. Armour each became material witnesses for the prosecution. Mr. Varnum had been a customer of the Coast Hardware Company for a number of years and through him material was sold to the School Board of Escambia County. The record shows that Mr. Ferrell McDonald, sometime after fire destroyed his hardware business and after going through bankruptcy, went to the State of Mississippi, but when informed against by the County Solicitor in this case returned to the City of Pensacola, and through some agreement not clearly shown by the record, terms were reached by his counsel and the prosecuting attorney, and as a result thereof Ferrell McDonald was not placed on trial under the information as principal, but gave testimony in the cause as a State witness.
Mr. Varnum participated in Escambia County politics and had enemies, and one was instrumental in obtaining an indictment by a grand jury against him and appeared as a witness for the prosecution, but a verdict of not guilty was rendered by a jury. Plaintiff in error contended that some of his political enemies appeared as witnesses for the prosecution in the case at bar. The State's case is based on the testimony of Mr. Ferrell McDonald, who testified that Mr. Varnum came to him at his place of business in Escambia County, Florida, on July 20, 1936, and wanted some money, the net results of which culminated in the plaintiff in error and McDonald jointly preparing a false invoice against the School Board of Escambia County for the sum of $456.50, viz:
* * *
| 4/20 5 Barrels Roof Coating (275 gal) @ .60 | $165.00 |
| 50 Rolls 3-ply roofing paper @ 2.20 | 110.00 |
| 35 Rolls 30# Roofing Felt @ 2.20 | 77.00 |
| 35 Rolls 15# Roofing Felt @ 2.20 | 55.00 |
| 1 Ton Asphalt | 27.50 |
| ------- | |
| 456.50 |
'Tate Ag. High School Assignment accepted on part of Board Pub. inst.
The false invoice so prepared was accepted for the Board of Public Instruction by J. H. Varnum and the proper notation was placed thereon by him, he returned same to Ferrell McDonald, who went to the American National Bank of Pensacola and in the name of Coast Hardware Company gave his note in the sum of $300 and attached the invoice as security for the payment thereof with said bank, and on July 21, 1936, the American National Bank credited to the account of Coast Hardware Company the sum of $293.70. Mr. McDonald testified that he in turn delivered this $293.70 to the defendant, Mr. Varnum, and that the invoice was fictitious and false and no material, or other thing of value, was delivered by his company to the Board for the invoice, but was given at the request and solicitation of the plaintiff in error, and the sum of $293.70 was obtained from the aforesaid bank under these false pretenses.
The plaintiff in error admitted approving the invoice, but denied that it was fictitious and contended that it was an honorable, praiseworthy, and upright business transaction, and that the materials therein named and described were bought of the Coast Hardware Company and that some of the roofing so purchased was used on the Tate Agricultural High School situated in Escambia County, Florida, and that the system used by the School Board did not require a written receipt showing delivery. The plaintiff in error contended the suit at bar was a continued effort on the part of his political enemies to bring him into disrepute by obtaining a conviction, when he would be removed from office, and that the witness McDonald had joined his political enemies on the theory that it would be safer to be a State witness than run the risk of conviction, and otherwise carried out the agreement between the County Solicitor and the attorney for Mr. McDonald.
During the progress of the trial the prosecution introduced into evidence, over the objection of the defendant, State's Exhibit No. 1, which was a record of accounts of the Coast Hardware Company against plaintiff in error and the School Board of Escambia County. This record did not show an invoice in the sum of $456.50, which is the basis of this prosecution. The original page from the book has been certified to this Court as State's Exhibit No. 19. Some of the entries thereon appear to have been written with pen and others with a pencil, and those written with a pencil appear to have been erased, in part, and to have been erased in other places or changed and no evidence was offered by the prosecution as to these erasures and changes or how or by whom they were kept, the manner of making entries thereon and other essentials necessary to make an accurate and authentic set of books. The burden was on the State of Florida to comply with Section 4410, C.G.L., and the decisions of this Court thereon prior to the receipt into evidence of Exhibit No. 19. See Section 4410, C.G.L.; Union Bank of Florida v. Call, 5 Fla. 409; Stewart v. Stewart, 62 Fla. 388, 56 So. 413; Ziegler v. State 95 Fla. 108, 116 So. 241. The statute supra applies to civil and chancery cases but the rules of evidence in criminal cases are more strict than they are in civil and chancery cases.
When the plaintiff in error was on the witness stand counsel for the prosecution, on cross examination, interrogated him as to the payment of other invoices at the bank and did so over the objection of counsel for plaintiff in error, and some of the questions are, viz:
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