HYMIE SWERDLIN
v.
STATE
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Hymie Swerdlin was convicted of fraudulently disposing of a car of watermelons that came into his possession as an agent. The Florida Supreme Court reversed because the conviction on the fraud charge was inconsistent with the jury's acquittal on the false pretense count and the court's directed verdict on the larceny count.
No. The conviction must be reversed because under Florida law, there must be consistency between the charge brought and the evidence proved. The conviction for fraudulent disposition was inconsistent with the acquittals on the false pretense and theft counts.
“Can one who is charged with having fraudulently disposed of a car of watermelon's that came into his hands by reason of his employment, be convicted on proof that he failed to account for the proceeds of the watermelons placed in his hands for sale by the owner?”
States the precise legal question presented on appeal regarding the consistency of charges and proof
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Join FLexlaw to unlock all legal intelligenceAppellant was employed as an agent to sell a car of watermelons belonging to John B. Yongue. He was charged with three counts: (1) fraudulently dispos…
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Appellant was tried and convicted on an information in three counts, viz.: (1) He did unlawfully, feloniously, and fraudulently dispose of a car of *516watermelons, the property of John B. Yongue, which he took in custody as agent of Yongue, (2) That with intent to defraud Yongue, he falsely pretended that he was the agent of the State of Florida when he accepted the car of melons, which representations were false but which Yongue relied upon and delivered the car of melons to appellant, (3) That he did steal, take, and carry away and convert to his own use one car of watermelons. The jury acquitted appellant on the second count and, by instruction, on the third count but convicted him on the first count finding the value of ■ the watermelons • to be sixty dollars. Motion for new trial was denied and this writ of error was prosecuted.
The question to be answered may be thus stated: Can one who is charged with having fraudulently disposed of a car of watermelon's that came into his hands by reason of his employment, be convicted on proof that he failed to account for the proceeds of the watermelons placed in his hands for sale by the owner?
Under the practice in some jurisdictions, the verdict and judgment rendered might be permitted to stand but under the rule prevailing in this State with reference to consistency in the charge and the proof, it must be reversed. Craig v. State, 95 Fla. 374, 116 So. 272; Rogers v. State, 97 Fla. 290, 130 So. 561; Sansbarry v. State, 5 Ala. Appl. 117, 58 So. 340. See also West v. State, 140 Fla. 421, 191 So. 771, the most receent statement by this Court of the general rule.
Reversed.
Buford and Thomas, J. J., concur.
Whitfield, P. J., concurs in opinion and judgment.
Justices Brown and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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Peele v. State, 155 Fla. 235 (Fla. 1944)…ve done had it been sitting as a jury [*239] in the case, but whether as reasonable men the jury could have found from all the evidence adduced the challenged ver- • diet. See Sanchez v. State, 133 Fla. 160, 182 So. 645; Beck v. State, 142 Fla. 524, 195 So. 143. The second ground relied upon for a reversal of the verdict and judgment of the lower court is that the trial court erred in its instruction to the jury on the law of self defense. The portion of the instruction relied upon and urged here as rever…
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Guerra v. State, 173 So. 2d 176 (Fla. 3d DCA 1965)…PER CURIAM. Affirmed upon authority of the rule stated in Beck v. State, 142 Fla. 524, 195 So. 143; Walker v. State, 152 Fla. 455, 13 So. 2d 4; State v. Sebastian, Fla.1965, 171 So. 2d 893, [opinion filed 2/17/65].…
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Norris v. State, 150 Fla. 686 (Fla. 1942)…as not sufficient to warrant us in saying that it was so convincing as [*689] to require a reversal of the judgment here under consideration. The sufficiency of identification was discussed by us in the case of Beck, et al., v. State, 142 Fla. 524, 195 Sou. 143. Under the rule there stated we must reach the conclusion that in this case, as reasonable men, the jury could have found the verdict rendered upon the evidence. What we have said above is sufficient to show that the trial court did not commit erro…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Craig v. State, 95 Fla. 374 (Fla. 1928)
- West v. State, 140 Fla. 421 (Fla. 1939)
- McCaskill Inv. Co. v. Green, 97 Fla. 290 (Fla. 1929)