Opinion
March 24, 1950.
Appeal from the Court of Record, Escambia County, Ernest E. Mason, J.
Woodrow M. Melvin, Milton, for appellant.
Richard W. Ervin, Attorney General, and Reeves Bowen, Assistant Attorney General, for appellee.
The defendant was tried and convicted in the court below on a charge of embezzlement. The jury found the defendant guilty of "petty embezzlement," he was adjudged guilty of "said offense" by the court, and sentenced to pay a fine of $100 or, in default thereof, to imprisonment for sixty days in the County Jail.
The defendant contends, on this appeal, that the verdict is legally insufficient in that there is no such crime as petty embezzlement in this state and that the verdict is not responsive to the charge in the information.
Our statute, Section 812.04, Florida Statutes 1941, F.S.A., provides that one who embezzles the property of another, under the circumstances therein mentioned, "shall be punished as if he had been convicted of larceny." Section 811.01, Florida Statutes 1941, F.S.A., defines the offense of grand larceny and provides the penalty therefor; and Section 811.02, Florida Statutes 1941, F.S.A., provides for a lesser penalty "if the value of the property stolen as mentioned in the preceding section is less than fifty dollars".
It may be seen that, under these statutes, it becomes important for the court to know the amount ascertained by the jury to have been embezzled; otherwise, it cannot tell what penalty the law requires to be imposed. Thalheim v. State, 38 Fla. 169, 20 So. 938.
The verdict in the instant case was predicated on an instruction by the court, to which no objection was made, that if the jury found that the accused embezzled less than $50, then "he would be guilty of petit embezzlement and you should so state in your verdict." While verdicts in criminal cases should be certain and import a definite meaning free from ambiguity, yet they should be considered with reference to the indictment and the entire record, and any words which convey beyond a reasonable doubt the meaning and intention of the jury are sufficient, and all fair intendments will be made to support the verdict. Albritton v. State, 54 Fla. 6, 44 So. 745, and cases therein cited.
It is clear, therefore, that when the verdict is considered in connection with the court's instruction, the jury did in fact find the defendant guilty of the embezzlement of a sum less than $50.
In Frink v. State, 56 Fla. 62, 47 So. 514, 517, in which the accused was charged with the embezzlement of $700, the jury found the defendant guilty of "grand embezzlement." This court said, "Taken in connection with the charge, we think the verdict is a good one. The court charged the jury that, if they found the defendant guilty of embezzlement of over $20, they should find him guilty of grand embezzlement. Though the statute does not use the language, it is evident from the charge what the jury meant." As in the instant case, the defendant in the Frink case likewise made no objection to the instruction of the court as to the form of the verdict.
While we must expressly disapprove the instructions given to the jury as to the form of their verdict in the instant case, resulting in the irregular verdict entered herein, in the absence of objections to such instructions and under the authority of Frink v. State, supra, we hold that such verdict does not constitute reversible error.
We have not overlooked the former decisions of this court in McKinley v. State, 102 Fla. 632, 136 So. 380; Elkins v. State, 95 Fla. 188, 116 So. 243; and Ziegler v. State, 95 Fla. 108, 116 So. 241. Insofar as such decisions are in conflict with the opinion herein expressed, we recede from the former holdings.
The defendant also complains of the insufficiency of the evidence. We have carefully examined the record and find ample evidence to support his conviction.
The judgment in the instant case is not here attacked. However, it will be noted that the sentence imposed thereby is within the penalty imposed for the embezzlement of less than $50; and construing the information, the verdict as legally interpreted, and the judgment and sentence with the entire record, it cannot be said that the judgment and sentence are erroneous. The judgment is accordingly
Affirmed.
ADAMS, C.J., and TERRELL and THOMAS, JJ., concur.