Green v. State

79 So. 712, 76 Fla. 351

• Court: Supreme Court of Florida
• Decided: August 15, 1918
• Status: Published

Opinions

Browne, C. J.

A verdict of guilty was had on the first count in an information charging that the defendant did “unlawfully, feloniously and designedly falsely pretend to one Florence Gaskin that he, the said Simon C. Green, had on deposit with the Miami Bank & Trust Company fifteen hundred dollars by reason of which said false pretense the said Florence Gaskin gave to the said Simon C. Green a certain note and mortgage on certain land located in Miami, Dade County, Florida, a more particular decription of which said note and mortgage is to the County Solicitor unknown of the value of fifteen hundred dollars of the property, goods and chattels of the said Florence Gaskin, and the said Simon C. Green did unlawfully obtain from the said Florence Gaskin the said note and mortgage of the value of fifteen hundred dollars, with intent to then and there to defraud her, the said Florence Gaskin, of the same, whereas in truth and in fact the said Simon C. Green did not then and there have fifteen hundred dollars on deposit in the Miami Bank & Trust Co.”

A motion in arrest of judgment was made on the following grounds:

“1st. Because it appears from the inspection of the record that the defendant was convicted on the first count of the information, which said first count is contrary to the statute in that the information does not allege that the prosecuting witness, Florence Gaskin, was induced to part with a note and mortgage in question on the strength of the false pretenses alleged to have been made by the defendant to her.

“2nd. Because the said count does not allege that the mortgage given to secure the payment of the note in question covered land belonging to or was the property of the said Florence Gaskin at the time of the execution of the alleged mortgage.

“3rd. Because the information does not allege that the defendant promised anything to the said Florence Gaskin.”

Sentence was imposed and defendant took writ of error, contending here that the motion in arrest should have been granted.

In substance the information charges that the plaintiff in error falsely told Florence Gaskin that he had $1500.00 in the Miami Bank & Trust Company; that by reason of that statement Florence Gaskin gave Green a note and mortgage worth $1500.00 on certain property; that Green obtained the note and mortgage with intent to defraud her of it; and that in truth Green did not have $1500.00 on deposit in the Miami Bank & Trust Company.

There is no statement that he promised to give her any money or a check, or that he gave her a bad check on the bank. The mere allegation that he falsely represented that he had money in the bank, and because of that representation, she gave him the note and mortgage, is insufficient. There is no causal relation between these two allegations. There is no allegation that she was deceived, nor is there anything stated in the information to show she was deceived. There is no allegation that, but for his false representation she would not have given the note and mortgage, or that she was induced by any false pretense of the plaintiff in error to give him the note and mortgage. There are essential elements of the offence, v/hich must be made to appear in the information and cannot be left to inference or conjecture.

As the count upon which the plaintiff in error was convicted fails to allege all the essential elements of the of-fence charged, the court erred in denying the motion in arrest of judgment.

The judgment is reversed.

Taylok and Ellis, J. J., concur. Whitfield and West, J. J., dissent.