Opinion
January 15, 1952.
Appeal from Circuit Court, Bay County; E. Clay Lewis, Jr., Judge.
W. Fred Turner, Panama City, for appellant.
Richard W. Ervin, Atty. Gen. and William A. O'Bryan, Asst. Atty. Gen., for appellee.
Affirmed.
TERRELL, CHAPMAN, ROBERTS, and MATHEWS, JJ., concur.
SEBRING, C.J., and THOMAS, J., dissent.
HOBSON, J., not participating.
The appellant was convicted at a trial on an information charging that while personating one Edward Fox he got from one Annie E. Register an order for the payment of money intended for Fox, and received on the check at the drawee-bank a stated sum of money.
The act denounced is the false personation of another and the receipt by one in such assumed character of property meant for the one impersonated, with intent to convert it to the impersonator's use. Sec. 817.02, Florida Statutes 1949, and F.S.A.
The testimony showed that the appellant called on Annie E. Register and told her he was Edward Fox, the son of Bert Fox, and that he needed $25 to bring his father home from the hospital in Dothan, Alabama, where he had been confined with a broken leg. Annie E. Register did not know the son, but she was acquainted with the father. Believing the story and thinking she was aiding Bert Fox, she delivered to the appellant a check which she signed, dated and made payable to "cash." She did not insert the amount to be paid.
Appellant sought out an acquaintance, secured his indorsement of the check and sent him to the bank to cash it. By that time the amount appeared as $300. The bank paid the check on presentation and charged that amount to the account of Annie E. Register.
What the appellant did would receive the condemnation of any right thinking person, but our immediate concern is with the propriety of the technical charge placed against him, and the sufficiency of the supporting evidence. The statute presently in force is precisely the same as it appeared in Chapter 56, Section 41, p. 364, of McClellan's Digest (1881), except that the last clause then read: "shall be deemed to have committed larceny and be punished accordingly," while the last clause of the current one reads: "shall be punished as if he had been convicted of larceny." The difference amounts to nothing at all, and the clause is utterly beside the point now presented. We are concerned only with the elements of the offense alleged, and hence attempted to be proved.
This court in construing the law where an act as contemptible as the one here established had been committed plainly held that the indictment should allege that the person impersonated had a right to demand the property from the one who surrendered it, that it was incumbent on the latter to deliver the property or that there was some relationship between them sufficient to induce the one to loan or deliver the property to the other. Moreover, it was held that it was indispensable to a conviction of the offense that the defendant knew of the obligation or relationship and by his falsely representing himself to be the obligee obtained the property with the intention of converting it to his own use. Jones v. State, 22 Fla. 532. Applying those principles to the facts here and adhering to that decision, it was the state's burden to prove a relationship between Annie E. Register and Bert Fox or an obligation from her to him, of which the defendant knew, and knowing, took advantage of when he pretended to be Fox. Such was neither alleged nor proved.
The state was well aware of the appellant's position at the outset and throughout the trial. The point was raised at four stages of the proceedings: first, by motion to quash the information; second, by motion for directed verdict at the conclusion of the state's evidence; third, by requested charges on the point; and fourth, by motion for new trial. In every instance the ruling was adverse to him, but in my opinion his position was sound on each occasion.