ED PENUEL, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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This case reviews an embezzlement conviction, focusing on the sufficiency of the indictment. The court affirmed the conviction, finding the indictment adequately alleged the crime and ownership of the embezzled proceeds.
Yes, the indictment is sufficient. The agreement does not constitute a partnership, and the proceeds from the sale of Cawthon's horses are necessarily Cawthon's property. The indictment clearly charges embezzlement of the proceeds, not the horses themselves.
“We fail to perceive how this agreement constitutes a partnership, or anything more than a promise on Cawthon’s part to pay an amount to be thereafter ascertained upon a contingency; it does not even invest Penuel with title to any of the proceeds to arise from the sale.”
Establishes that the agent's commission agreement did not create a partnership or transfer title to the proceeds.
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Join FLexlaw to unlock all legal intelligencePenuel was convicted of embezzling proceeds from selling horses as Cawthon's agent. The agreement stipulated Penuel would receive half the proceeds ab…
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Cockrell, J.
The plaintiff in error challenges the sufficiency of the indictment, under which he was convicted of embezzlement of the proceeds from the sale made by him as agent of certain horses, the property of J. B. Cawthon.
The principal objections to the form of the indictment may be stated as founded upon the assumptions that the pleading shows a partnership between Penuel and Cawthon and that it fails to allege the ownership of the property embezzled.
The indictment charges that twelve head of horses belonging to Cawthon were delivered to Penuel as his agent to sell for cash, and that Cawthon agreed to pay Penuel one half the proceeds therefrom over and above a certain amount. We fail to perceive how this agreement constitutes a partnership, or anything more than a promise on Cawthon’s part to pay an amount to be thereafter ascertained upon a contingency; it does not even invest Penuel with title to any of the proceeds to arise from the sale. It would seem, however, that an interest of the agent to sell on commissions from the sale, when he fraudulently converts the whole sum, does not forbid an indictment charging embezzlement of the total amount received by him. See Commonwealth v. Jacobs, 126 Ky. 536, 104 S. W. 345, 13 L. R. A. (N. S.) 511; 2 Bishop’s New Crim. Law, Sec. 370; Gen. Stats. of 1906, Sec. 3311.
The ownership of .the proceeds from the-sale of the horses might have been alleged with greater particularity, but we think it necessarily follows from the pleading as a whole, that the monies so arising were the property of Cawthon. The contract between the two is set forth, the ownership of the horses is laid in Cawthon, and it follows by compelling sequence, that the proceeds from the sale of these horses belonged to Cawthon. Nor do we find any ambiguity in ascertaining that the charge is for embezzling the proceeds arising from the sale of the horses and not for embezzling the horses themselves.
While we do not intend to incourage loose pleadings in criminal cases, we are also disinclined to lend too ready an ear to captious criticisms of indictments,, or such as do not go to a failure to allege some essential, element of the crime or tend to embarrass .the. defense.
Judgment affirmed. Shackleford, C. J., and Taylor, Hocker and Whitfield, J. J., concur.
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Smith v. State, 72 Fla. 449 (Fla. 1916)…Rep. 473. We would also refer to Mills v. State, 58 Fla. 74, 51 South. Rep. 278; Edwards v. State, 62 Fla. 40, 56 South. Rep. 401; Sumpter v. State, 62 Fla. 98, 57 South. Rep. 202; Vicente v. State, 66 Fla. 197, 63 South. Rep. 423; Pennel v. State, 66 Fla. 203, 63 South. [*456] Rep. 422; Dykes v. State, 68 Fla. 110, 66 South. Rep. 565; Robinson v. State, 69 Fla. 521, 68 South. Rep. 649, L. R. A. 1915 E 1215. The case of Cooper v. State, 47 Fla. 21, 36 South. Rep. 53, and Ewert v. State, 48. Fla. 36, 37 So…1 / 2
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Smith v. State, 74 Fla. 44 (Fla. 1917)…ct out of the operation of a statute providing punishment for an agent who shall convert to his own use money of his principal which has come into his possession.” We cited this case with approval and followed the holding therein in Penuel v. State, 66 Fla. 203, 63 South. Rep. 422. Many other authorities to the same effect will be found collected to the notes appended to the case in 13 L. R. A. (N. S.) 511 [*48] and 15 Ann. Cas. 1226. Without further discussion of the evidence, we have no hesitancy in stat…