Opinion
August 24, 1951.
Appeal from the Criminal Court, Dade County, Ben C. Willard, J.
Swink Swink, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
Counsel agree that the controlling question presented for our determination in this case is, "Where the language of a criminal information charges that the defendant `being then and there the agent, clerk, servant and employee of Kitty Kent did then and there unlawfully embezzle and fraudulently convert to his own use certain property of the said Kitty Kent aforesaid, to-wit: 1 Broach, two-piece, containing approximately 168 stones, 1 diamond ring and one antique necklace, of the value of seven thousand ($7,000.00) Dollars, lawful money of the United States of America, the property of the said Kitty Kent, a more particular description of which said property is to the County Solicitor unknown, and which said property came into the possession of him, the said Al Fastow, by reason of his said employment as such agent, clerk, and servant of the said Kitty Kent,' is such language sufficient to charge the defendant with the embezzlement of $7,000.00?"
The evidence clearly shows that the appellant's possession of certain items of jewelry was lawful and that he was authorized to dispose of the jewelry by the complaining witness who was the owner thereof. The court (trial by jury having been waived) found upon conflicting evidence that appellant had sold the jewelry in question and had realized from such sale the sum of $7,000 and further that appellant converted said sum of money to his own use. There is no evidence in the record to sustain the only charge in the information, to wit: that appellant unlawfully embezzled the jewelry and fraudulently converted it to his own use; nor could he have been guilty of such crime, since it appears from the undisputed testimony that he was authorized by the owner of the jewelry to sell it, which the court obviously found he had done, for in the judgment it is stated that "you, Al Fastow, have been regularly tried and convicted of embezzlement of $7,000.00 lawful money of the United States of America." See 18 Am.Jur. 582, Section 21, and Munoz v. State of Florida, 87 Fla. 220, 99 So. 555.
We do not find any merit to the State's contention that the information charges the defendant with both embezzlement of the jewelry and embezzlement of $7,000. Such sum of money was placed in the information for the sole purpose of setting forth the value of the property which was allegedly embezzled in order to meet the requirements of a valid information. See Grant v. State of Florida, 35 Fla. 581, 17 So. 225.
The rule which prevails in this State is that the charge in the information must be sustained by the proof. Although the evidence may be sufficient to show that the defendant was guilty of a crime of similar nature to the one which was charged in the information, such proof is irrelevant, inadmissible and, consequently, insufficient to uphold the judgment of conviction.
Reversed on authority of James Lewis alias "Little Man" v. State of Florida, opinion filed July 24, 1951; Swerdlin v. State, 142 Fla. 515, 195 So. 143; West v. State, 140 Fla. 421, 191 So. 771 and cases therein cited.
Reversed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.