Youngker v. State

• Decision Date: 25 October 1968
• Docket Number: No. 1481,1481
• Citation: 215 So.2d 318
• Parties: Harold YOUNGKER, Sr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 318

215 So.2d 318

Harold YOUNGKER, Sr., Appellant, v. STATE of Florida, Appellee.

No. 1481.

District Court of Appeal of Florida, Fourth District.

Oct. 25, 1968.

Rehearing Denied Nov. 27, 1968.

Marvin J. Emory, Jr., and Henry R. Carr, Miami, and Frank Clark, III, Indialantic, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

The defendant, Harold Youngker, Sr., was a building contractor in Brevard County, Florida. He was charged by separate counts of an information filed by the County Solicitor of Brevard County with perjury, embezzlement and grand larceny--all allegedly arising out of the construction of improvements by the defendant on four lots he owned in Brevard County. He was tried by a jury and found guilty on these counts of the information which will hereafter be discussed.

Count I of the information deals with the perjury charge. It alleges that on 24 March 1964 the defendant made an affidavit containing a false statement in violation The record indicates that the defendant signed a document in the presence of a notary public which was entitled 'Waiver of Lien'. This document ¹ contained language The defendant attacks the judgment and sentence under Count I solely on the ground that the waiver of lien was not an 'affidavit' within the meaning of F.S. 1963, Section 84.351, F.S.A., because it was not made under oath. An affidavit is by definition a statement in writing under an oath administered by a duly authorized person, Black's Law Dictionary, Fourth Edition. An oath may be undertaken by any unequivocal act in the presence of an officer authorized to administer oaths by which the declarant knowingly attests the truth of a statement and assumes the obligation of an oath. Markey v. State, 1904, 47 Fla. 38, 37 So. 53, 59. The notary public before whom the waiver of lien was signed identified the document, her signature, and that of the defendant. The notary testified, however, that her only act with respect to the document was the affixing of her seal, signature, and stamp.

of F.S.1963, Section 84.351, F.S.A. (now F.S.1967, Section 713.35, F.S.A.). This statute applies the penalties for perjury to any person who willfully makes or furnishes an affidavit containing a false statement in connection with the improvement of real property in this state knowing that the one to whom it is furnished may rely on it, where the one to whom it is furnished parts with anything of value relying on the truth of such statement as an inducement to do so to the effect that all subcontractors and materialmen had been fully paid for work done on the real property described in the affidavit through the third stage of construction. At the time the document was signed, certain subcontractors and materialmen had not been paid in full for all work performed and materials furnished through the third stage of construction.

Where an officer authorized to administer oaths identifies his signature on a jurat together with the signature of the person making the statement, this is prima facie evidence that the declarant was in fact sworn. In the present case, however, the express testimony of the officer negates the prima facie showing which might otherwise have been made by the identification of her signature on the jurat and that of the defendant.

From the testimony of the notary it is conclusively shown that she did not administer a verbal oath either by asking the defendant whether or not he swore to the statements in the waiver of lien or by asking him to sign the waiver of lien if he swore to the statements therein. In the absence of some verbal act by the officer or the defendant, is the mere signing of the waiver of lien by the defendant competent substantial evidence that defendant knowingly attested the truth of the statements in the waiver and assumed the obligations of an oath? We are compelled to the conclusion that the mere signing of the waiver of lien, under the facts and circumstances of this case, is not competent substantial evidence that the defendant knowingly assumed the obligations of an oath. In the first place, the form of the instrument is not that generally employed in drafting affidavits. Nowhere does it say that it constitutes an oath or affidavit Of the defendant. Secondly, there was no evidence that the notary or any other person called the defendant's attention to the fact that the jurat on the lower left hand side of the page would be completed for the purpose of constituting the document a sworn statement. For all that appears from the record, the defendant may reasonably have concluded that he was signing a bare assertion as distinguished from a sworn statement. For these reasons, we conclude that the evidence was insufficient to constitute competent substantial evidence that the waiver of lien was an 'affidavit' within the meaning of F.S.1963, Section 84.351, F.S.A. Consequently, the judgment and sentence under Count I are reversed and the defendant is ordered discharged from said judgment and sentence, it appearing to the court from the entire record that no useful purpose would be achieved by ordering a new trial on Count I.

Count VI of the information charges embezzlement. It alleges that the defendant on 24 March 1964 used in excess of $100.00 from a payment made to him by the Bank of Melbourne and Trust Company on account of improving said real property in Brevard County, Florida, for purposes other than to pay for labor or services performed or materials furnished for the improvements on said real property while amounts for labor and services and materials furnished to or on account of The only issue as to Count VI which merits consideration is whether or not the evidence was sufficient to support the verdict thereunder. The evidence indicates that the defendant received funds from the Bank of Melbourne pursuant to the aforementioned construction loan agreement for the purpose of improving certain specific real property in Brevard County, Florida. These funds were received in three installments, one on 19 February 1964 in the amount of $14,513.00, one on 6 March 1964 in the amount of $22,200.00, and one on 24 March 1964 in the amount of $22,200.00. These funds were deposited in the appellant's account at the Bank of Melbourne. Ledger cards and a check on this account admitted in evidence tend to establish that a judgment in favor of Beautyware Plumbing Supply Co., Inc. was paid from this account at least in part by the use of the funds received as aforesaid from the Bank of Melbourne.

such improvements remained unpaid. The information charged an offense under F.S.1963, Section 84.341(3), F.S.A. (now F.S.1967, Section 713.34(3), F.S.A.) The information erroneously referred to Section 84.341(2). This erroneous citation would not render the conviction invalid where the information clearly charged an offense and there is no showing that the erroneous citation misled the defendant to his prejudice. Masi v. United States, 5 Cir.1955, 223 F.2d 132. Under these circumstances the erroneous citation may be considered surplusage.

F.S.1963, Section 84.341(3), F.S.A., permitted the use of such loan proceeds to pay for 'labor or services performed on or materials furnished' for the improvement on account of which the loan proceeds were advanced. We think the quoted language would also permit the use of such proceeds to satisfy A judgment based on a debt incurred for such labor, services or materials. Any other interpretation would lead to such absurd results that it could not be deemed to have been intended by the legislature.

The state, therefore, had the burden of proving that the judgment in favor of Beautyware Plumbing Supply Co., Inc. was not based on a debt for labor, services, or materials furnished for the improvement on account of which the loan proceeds were advanced by the bank. No evidence was submitted on this point. Consequently, the judgment and sentence under Count VI must be reversed. As to this count, it is our opinion that the ends of justice require the cause be remanded for a new trial on Count VI.

COUNTS VII, VIII, IX, and XII of the information charged the defendant with larceny under F.S.1963, Section 811.021, F.S.A. These counts allege that on 24 March 1964 the defendant took, stole and carried away property belonging to Donald Henry Floyd; Universal Concrete, Inc.; East Coast Lumber and Supply Company; and Brevard Heating and Air Conditioning Corporation. The issue raised as to these counts is whether or not the evidence is sufficient to support the verdicts thereon.

The evidence indicates that the persons whose property was allegedly stolen were either contractors or materialmen who voluntarily supplied labor or materials or both to the defendant for the improvement of the said parcels of real property owned by the defendant. The materials and labor were supplied to the defendant pursuant to contracts between the defendant and the respective materialmen and contractors. Each of such contracts embodied either an express or an implied promise to pay for the labor and materials. At the time of trial (January 25, 1966) the defendant had not paid the debts thus incurred.

The pertinent language of F.S.1963, Section 811.021, F.S.A., reads as follows:

'(1) A person who with intent to deprive or defraud the true owner of his property * * *

'(a) Takes from the possession of the true owner * * * or obtains from such person possession by color or aid '* * *

of fraudulent or false representations or pretense, or of any false token or writing * * * any money, personal property * * * or article of value of any kind * * *

'(c) * * * steals such property, and is guilty of larceny.'

A conviction under this statute could be sustained either by proof of the elements of common law larceny which is embodied within the statute or by a showing of the crime of false pretenses...