Thalheim v. State

38 Fla. 169

Opinion

Liddon, J.:

Upon the record before us twenty-nine assignments of error are made. The first error assigned is, that the court erred in overruling defendant’s motion for a new trial. All of the grounds of such motion are also-made subjects of other assignments of error, and such of them as are necessary to be considered will be-passed upon in disposing of such other assignments..

The second error assigned relates to the refusal of the application for a bill of particulars. The Circuit Judge in his written order denying the application ap-. pears to have rested his refusal solely upon the want of power in him to grant the application, while in his order overruling the motion for a new trial he appears to have exercised a discretion in the matter, and to have refused defendant’s application also upon the ground that he was referred by the State attorney to a place where a sufficient bill of particulars in the case could be found. In this apparent conflict of reasons given we think it proper to consider the power of the Circuit Judge in applications of this character. There is no doubt that the indictment, in so far as it alleges the act of embezzlement, is sufficient under section 2897 Revised Statutes. The portion of the statute relevant to the present case and present question thereof would read as follows: “It shall be sufficient to allege generally in the indictment the embezzlement * * of money to a certain amount, without specifying any particulars of such embezzlement.” Upon a motion to quash upon this point the indictment under the statute should be sustained. Although this indictment upon the face of it does ■ not apprise the defendant of the specific acts which constitute the charge the State prefers against him, and although he may be ignorant of what specific transactions will be offered in proof to sustain the charge, yet it is held by the courts that such indictments do not infringe upon constitutional guaranties like that contained in the 11th section of our Bill of Rights, that “in all criminal prosecutions the accused shall have the right * "* * to demand the nature and cause of the accusation against him.” Commonwealth vs. Bennett, 118 , text 452; Commonwealth vs. Wood, 4 Gray, 11; State vs. Rowe, 43 Vt. 265, text 267. In uiany oases the constitutional validity of such an indictment has been sustained upon the ground that it is within the general power and discretion of a court before which the case is pending, upon proper motion, to order that the State furnish the defendant such bill of particulars of the alleged offense as will give him notice of the specific acts which the State will offer in evidence as the essential facts of the crime charged. In State vs. Rowe, supra, it is said: “From a charge so genera], it is evident that many cases may arise where the accused would labor under serious embarrassmentin preparing his defense and defending against the prosecution, if compelled to go to trial without any information, except what could be inferred from the complainant alone, as to the number of offenses for which conviction would be claimed. In prosecutions under these provisions of the statute, we think the accused is entitled to a specification of the offense for which the government claims a conviction. * * * It has been ruled in this State that in this class of cases the accused is entitled to a specification of the offenses charged in this general form of complaint. * * It would seem that this ruling was made with the view of satisfying the provision of the 10th article of the Bill of Rights of our State Constitution, which gives the accused, in all prosecutions for criminal offenses, a right ‘to demand the cause and nature of his accusation.’ ”

An indictment may contain only a general allegation •of an offense, wanting in details, of which the defendant is justly entitled to be informed before trial, yet if it is in conformity with the statutory requirement upon the subject;, the court can not pronounce it ill upon a motion to quash. In such cases, according to ‘unanimous authority, upon proper application the judge orders a bill of particulars, 1 Bish. Crim. Pro., sec. 643. The object of such a bill of particulars is uot to supply a defect in the indictment (1 Bish. Crim. Pro., sec. 646), but to prevent a failure of justice which otherwise might occur. Commonwealth vs. Snelling, 15 Pick. 321. In the case last cited the general rule is stated thus: “Where, in the course of a suit, from any canse, a party is placed in such a situation that justice can not be done in the trial, without the aid of the information to be obtained by means of a specification or bill of particulars, the court, in virtue of the general authority to regulate the conduct of trials, has power to direct such information to be seasonably furnished, and in an authentic form. ” In Commonwealth vs. Giles, 1 Gray, 466, text 469, the rule is stated as foil ovas: “It is now a general rule, perfectly well established, that in all legal proceedings, civil and criminal, bills of particulars or specifications of facts may and will be ordered by the court whenever it is satisfied that there is danger that otherwise a party may be deprived of his rights, or that justice can not be done.” A special application of the rule to criminal cases was made in People vs. Bellows, 2 N. Y. Crim. Rep. 12, 1 Bish. Crim. Pro., sec. 643; U. S. vs. Bennett, 16 Blatch, 338, text 350. Prom the foregoing and other authorities hereinafter cited, we deduce the proposition that whenever an indictment is so general as to give the defendant inadequate notice of the charge he is expected to meet, the court on his application will require the prosecution to furnish him with a bill of particulars specifically showing the nature of the charge against him. The defendant has a right to such bill of particulars only when the indictment does not give him adequate notice of the charge he is expected to meet. The power of the court to direct such bills of particulars does not depend upon any express statutory authority, but is included within the general power to regulate the conduct of trials in the just enforcement of the law. Wharton’s Crim. Pl. & Pr., sec. 705; People vs. Jaehne, 4 N. Y. Crim. Rep. 161; State vs. Wooley, 59 Vt. 357; State vs. Davis, 52 Vt. 376. The following authorities support the proposition that an indictment for embezzlement alleging the offense merely in a general way is one upon which a bill of particulars should be furnished upon proper application of the defendant: Wharton’s Crim. Pl. & Pr., p. 464; Bish. Crim Pro., sec. 645; Commonwealth vs. Bennett, supra; People vs. McKinney, 10 Mich. 54; Rex. vs. Hodgson, 3 Car. & P. 422; Rex vs. Bootyman, 5 Car. & P. 300. In view of these authorities we entertain no doubt that the Circuit Judge was mistaken when he conceived it to be beyond his power to make the order applied for, without express statutory authority. If he relied solely upon this point, and had refused to exercise any discretion whatever in the matter, his action would be clearly erroneous, for which the judgment should be reversed. Any other view of the law, it seems to us, would be in conflict with the section of the Bill of Rights of our State Constitution, hereinbefore quoted. While there is no doubt as to the power of the trial court to direct that a bill of particulars in a criminal case be furnished, yet the question whether it shall or shall not be furnished is within the reasonable discretion of the trial judge. Com monwealth vs. Giles, 1 Gray, 466; Commonwealth vs. Snelling, 15 Pick, 321; 1 Bish. Crim. Pro., sec. 643. The reference by the counsel representing the State to a paper filed in another court of inferior jurisdiction, in which the details of the offense were stated, was not the furnishing of a bill of particulars in the sense of the law. It should be furnished and filed in the case pending and the court in which application is made. In view of conclusions reached by us on other points in the case, it is not necessary to determine whether the facts stated by the Circuit Judge in overruling the motion for a new trial show a reasonable-exercise of discretion in denying the application for a bill of particulars. .

The third and fourth assignments of error relate to-the ruling of the court permitting, upon request of the State Attorney, four attorneys to be sworn as assistant State Attorneys, and in such capacity take part in the prosecution. It is not seriously urged that the court did not have authority under section 1355 Revised Statutes to permit the prosecuting officer-to obtain assistance in the case, or that the court exceeded its authority in permitting such assistance. The only contention upon this subject is, that it was-erroneous to permit the State Attorney to procure as-such assistants members of the bar who were retained by the corporation whose money the defendant is-charged with embezzling. The question presented is, are counsel, employed or paid by private parties, allowed to assist the State Attorney in the prosecution of persons charged with crime. The question is a new-one in this jurisdiction. Some reference was made to it in Eldridge vs. State, 27 Fla, 162, text 188-9, 9 South. Rep. 448, and Lambright vs. State, 34 Fla. 564, text 572, 16 South. Rep. 582, but it was not presented in-such a shape that it could be determined. In the-present case the allegations of the affidavit accompanying the motion are not as definite as they might be, yet we think sufficient appears to show that some of the attorneys objected to were interested and acting in the case at the instance and request of the Anglo-Continental (late OhlendoriF s) Guano Works (hereinafter called the foreign corporation), and the-only natural presumption is that they were so engaged; for some valuable consideration. As stated in Eldridge vs. State, supra, there is conflict in the authorities upon the subject. Upon full examination of the matter we find the overwhelming weight of authority is in favor of the practice. The only authorities found against it are those cited in the Eldridge case from Massachusetts, Michigan and Wisconsin and others from the same States. The following propositions are amply sustained by authority. A public prosecution-must be conducted by the proper official representative of the State, and must not under any circumstances be placed under the entire management and control of private parties or their attorneys. It is proper, however, for the State Attorney, when there is no express statutory prohibition, to obtain, with the consent of the court, the assistance of other counsel, and other members of the bar are not incompetent to-be engaged for such assistance and taking part in the-trial by reason of being retained and compensated by the prosecuting witness, the party injured by the crime, or other private interests. When such assistants are employed in the case, the State Attorney should always remain present at the trial, and see that a public-prosecution for a criminal offense does not degenerate- into a private persecution, and that the administration ■of the criminal law is not made a vehicle of oppression for the gratification of private malice, or the accomplishment of private gain or advantage. This rule has been held in States where provision exists for the employment of assistants to prosecuting officers at the public expense. The reason is stronger why it should be held applicable in this State where no provision is made for the payment of such assistants at public expense, and his compensation, if- he receives any, must necessarily be paid by the State Attorney individually (Rev. Stat. sec. 1355), or by private parties interested in the prosecution. The latest utterance upon the subject called to our attention is that of the Supreme Court of North Dakota, in the recent case of State vs. Kent, 4 N. Dak. 577, 62 N. W. Rep. 631. This case contains such a forcible discussion of the subject, expressing views that we approve, that we yield to the temptation to insert it here entire,, at the risk of unduly extending this opinion. The court said: “In England, criminal prosecutions were as a rule generally carried on by individuals interested in the punishment of the accused, and not by the public. The private prosecutor employed his own counsel, had the indictment framed and the case laid before the grand jury, and took charge of the trial before the petit jury. 1 Chit. Cr. Law, 9, 825. This system does not prevail in this ^tate. Here, in each county, there is a public prose•cutor, called the “State’s Attorney” for ■ that county. It is his duty to prosecute all criminal offenses triable in that county. He is paid a salary for that purpose out of the public funds. He is not allowed to receive any fee or reward from or on behaLf of any prosecutor or other individual for services in any prosecution o r business to which it is his official duty to attend, nor be concerned as attorney or counsel for either party other than for the State or the county, in any civil action depending on the same state of facts upon which any criminal prosecution commenced, but undetermined, shall depend. Section 427, 433, Comp. Laws. We do not think that this change in policy indicates a purpose to exclude the counsel for interested persons from all participation in the prosecution. Such counsel can not initiate the proceedings, or conduct them. The control of criminal prosecution has been taken from private hands, and transferred to public functionaries chosen for that express purpose. Rut there is nothing in the statute to justify the conclusion that counsel employed by interested persons may not assist the public prosecutor, in case he and the trial judge deem this course proper. The fact that the State’s Attorney who contrbls criminal cases is not allowed to receive any compensation from private prosecutors for the prosecution of a criminal case does not warrant the conclusion that no counsel paid by private persons shall be permitted to assist in the trial of such a case. It is one thing to have the prosecution entirely in the hands of one who may be influenced, because of a retainer, by the strong desire of his client to secure a conviction; but it is an entirely different thing to allow ■such an interested counsel to aid in the prosecution one who stands affected by no other motive than that of securing the punishment of guilt, and who has absolute control over the case. The law has removed criminal prosecutions from the control of private interests, but it has not excluded such interests from all participation therein. If no error is committed on the trial, we fail to see how an accused can be prejudiced by the fact that those personally interested have employed private counsel to aid the public prosecutor. Certainly, he should not be heard to complain of the zeal of the private counsel, if such counsel has not allowed his zeal to hurry him into error. The best mode of reaching the truth is by the strenuous contentions of opposing counsel, each animated by the conviction that the cause he has espoused is just. The public have some interests at stake in a criminal prosecution. May all the zeal be displayed on one side, and none be tolerated on the other? The public interests demand that a prosecution should be conducted with energy and skill. While the prosecuting officer should see that no unfair advantage is taken of the accused, yet he is not a judicial officer. Those who are required to exercise judicial functions in the case are the judge and the jury. The public prosecutor is necessarily a partisan in the case. If he were compelled to proceed with the same circumspection as the judge and the jury, there would be an end to the conviction of criminals. Zeal in the prosecution of criminal cases is therefore to be commended, and not condemned. It is the zeal of counsel in the court room, alone, of which the accused can complain. No decision can be found which questions the right of the prosecuting officer to consult with, and receive all manner of aid, even during the trial, from counsel for private parties, outside of the court room. And if such zeal in the court room, on the trial, does not result in error, what conceivable difference can it make whether such assistant was employed by the public, or by private persons? May not cross-examination of witnesses be conducted and arguments to the court and jury be made, by one who is as much convinced of the guilt of the accused-as his counsel is persuaded of his innocence? The manner of conducting the case in the court room can not work legal prejudice to the accused, without resulting in error for which the conviction will be set aside. It is therefore of no legal importance what inspires the zeal of the attorney who assists in the trial. Whatever is done to the injury of- the prisoner by private counsel, for which he can have no redress, is done out of court; for instance, by concealing or fabricating evidence. At just this point, where the zeal of counsel employed by private parties may be deadly to the accused, no kind of safeguard is or can be thrown around him. The prosecuting officer may consult with, and be entirely governed by the advice of such private counsel; and vet-the accused has no remedy, if the private counsel does not participate in the trial. If he does so participate, his zeal works no more prejudice to the accused than the zeal of any other equally able counsel who may be employed by the public. The cases all agree that an assistant hired by the public may engage in the trial without giving the prisoner any legal cause for complaint. Of course, the latter may think he is prejudiced because of being compelled to confront an exceptionally able and experienced prosecutor, but this furnishes no legal ground for overthrowing the conviction. The question can be placed in a clear light by the following statement of it: Can a defendant in a criminal case, who is obliged to submit to the zeal of an assistant prosecutor employed by the public insist that the zeal of an assistant counsel employed by interested parties, shall not be displayed against him, although it results in no error on the part of the prose - cution in the management of the case? We think there is only one answer to this question, -and that is against the right of the accused to complain in either case, so long as no error has been committed by the assistant on the trial. The rule is different, however, in Michigan and Massachusetts, under statutes very similar to ours. Meister vs. People, 81 Mich. 99; Sneed vs. People, 38 Mich. 251; People vs. Hurst, 41 Mich. 328, 1 N. W. 1027; People vs. Bemis, 51 Mich. 422, 16 N. W. 794; Commonwealth vs. Gibbs, 4 Gray, 146. The reasoning of Judge Campbell, in Meister vs. People, while very plausible, does not convince us that there should be interpolated into the statute as implied prohibition against counsel employed by interested parties assisting in the prosecution. We are unable to discover in the statute any other policy than that of transferring the control of criminal prosecutions from private to public hands. We think that the control of the public prosecutor over the proceedings is a sufficient guaranty that the accused will not be made the- innocent victim of overzealous prosecution by private persons. While aware that Judge Campbell has made out a strong case in support of his view, we can not discover in the legislation of this State the evidence of a policy hostile to the quite general practice of allowing the prosecuting officer to be assisted by counsel retained by those having a personal interest in the prosecution distinct from that of the general public.”

The following authorities are also in full accord with the opinion from which the above liberal extract is taken: 1 Bish. Crim. Pro., sec. 281; State vs. Shreves, 81 Iowa, 615, 47 N. W. Rep. 899; State vs. Fitzgerald, 49 Iowa, 260, S. C. 31 Am. Rep. 148; Keyes vs. State, 122 Ind. 527, 23 N. E. Rep. 1097; State vs. Wilson, 24 Kansas, 188, S. C. 36 Am. Rep. 257; State vs. Wells, 54 Kansas, 161; 87 Pac. Rep. 1005; Polin vs. State, 14 Neb. 540, 16 N. W. Rep. 898; Gardner vs. State, 55 N. J. L. 17, 26 Atl. Rep. 30; State vs. Orrick, 106 Mo. 111, 17 S. W. Rep. 176; People vs. Powell, 87 Cal. 348, 25 Pac. Rep. 481; Burkhard vs. State, 18 Texas App. 599; State vs. Bartlett, 55 Maine, 200.

It was also urged in the oral argument that it was error to “swear in” the attorneys procured by the State Attorney as assistants. Referring to the statement of facts accompanying this opinion it will be seen that it was made one of the grounds of objection to private counsel assisting in the prosecution that they were “not sworn in or under oath to perform the duties devolving upon them as assistants to the State Attorney.” Afterwards, ihe State Attorney, in compliance with the views of defendant, and evidently with the desire to accommodate him, requested the court to “swear iu” the counsel procured to assist in the prosecution, and they were sworn in as assistants in the case. No exception was taken to this action. On the contrary, the only objection upon the subject was that the assisting counsel were not sworn in. The nature of the oath administered to such attorneys is not shown by the record. There being no exception to the ruling of the court, no question of any error in the administration of the oath is presented for onr consideration.

It was also urged with great earnestness in the oral argument that too many assistants were allowed the State Attorney. The number of counsel which the court will permit to engage in the trial, assisting the State Attorney, must be determined by the trial court. It is a matter within the discretion of such court. In view of the general facts and circumstances of this case, including the fact that the very motion which seeks to restrict the number of counsel for the State, shows the names of four able counsel appearing for the defendant, we cannot see any abuse of such discretion.

It was also argued that the assistants of the State Attorney should not have been permitted to take part in the trial of the case, because one Neill M. Allred had already been “sworn” an assistant to the State Attorney at the same term of the court. Without stating what effect, if any, the previous “swearing in” of Mr. Allred would have upon the determination of the question, it is sufficient to say that it does not appear of record otherwise than by a recital in the motion that he had been so “sworn in,” or was acting as assistant to the State Attorney. We have often determined that we can not take notice of any fact which only appears in the record as a recital in a motion. Thomas vs. State ex rel., 37 Fla. 378, 20 South. Rep. 529.

The ñfth assignment of error refers to the admission in evidence of a contract of sale of phosphates by the Land Pebble Phosphate Company to the defendant as agent of the foreign corporation. It is deemed necessary to remark here that the embezzlement alleged against defendant was claimed by the State to have been committed of funds of the foreign corporation entrusted to him to be used in the purchase of phosphates for its account. In the matter of this particular contract it was claimed, with evidence tending to support the claim, that defendant had purchased for his principal, to be shipped to it, a large lot of phosphate, to be delivered free alongside the vessel at Port Tampa, and that the contract included a stipulation providing that the sellers should pay wharfage. The State claimed that this contract had been fraudulently altered by erasing the word sellers, apd inserting the word buyers, and in such altered state forwarded by the defendant to the foreign corporation, and that by means of such fraudulent alteration of the contract the defendant had been enabled by falsifying his account to correspond with the contract, to wrongfully convert to his own use $875, being the amount of wharfage on a cargo of phosphate shipped on the steamer Atlantic. The contract in its altered condition, as it was received from the London office of defendant, was offered in evidence. Several objections were urged against the admissibility of the contract in the trial court, but only one is argued here, i. e., thar the paper was admitted without proof that the fraudulent alteration was in the handwriting of defendant. As a matter of fact, we find that proof of the handwriting of defendant was offered and received before the paper was received in evidence. Anton Trubenbach, a State’s witness, who stated that he was familiar with the handwriting of the defendant, and had often seen him write, testified that while it was difficult to state positively that the interlined word was the handwriting of defendant, yet upon good faith and upon his knowledge it was. The proof of handwriting must always be, more or less, a matter of opinion, and we think the proof offered sufficient to meet the objection now urged.

The seventh assignment of error is predicated upon the admission of certain letters in evidence against the objection of the defendant. These letters were proved to be signed in the handwriting of officials of the corporation alleged to have been defrauded. They were submitted in connection with other evidence to the effect that the defendant from the early part of 1893 to September 18th, 1894, was the resident agent of the foreign corporation in Florida, and was furnished by it with a large amount of funds to use in buying phosphates for its account. On the date last named the-defendant was relieved as such agent, and turned over the books and papers, or a portion of them, to the representative of the foreign corporation who demanded and received them from him. The letters in question were addressed to the defendant at Ocala, Florida, and were found in the office recently occupied and vacated by him, and in letter files kept by him. There were four of them, all written during the continuance of the agency, and in reference to matters connected therewith. One of them expressly states that it is in answer to a letter addressed to the foreign corporation by the defendant. The objection urged to such letters was that they were irrelevant. It is argued that the mere fact that a party is found in possession of a letter, without proof that he answered or invited it, or in some way acquiesced in ins contents, does not make such letter admissible in evidence against him. The authorities sustain this general proposition. Wharton’s Or. Ev., sec. 682, and cases cited. An examination shows that the material facts of these cases are very different from those under present consideration. They were either cases in which there was no proof of the genuineness of the letter, or that they had ever been opened or read by the defendant, or, if he had knowledge of the contents, that he had in any way acted upon or acquiesced in the same. In nearly every case the letters held inadmissible could not be called part of the res gestae, and tended only to charge the party receiving it with guilt in reference to a past trans-' action. In such cases it has been said that the maxim, qui íacet consentiré mdetur, which is applicable to verbal conversations where a' statement is made'-in a party’s presence and not denied, has no application to facts stated in a letter which a party is not bound to answer or deny. People vs. Green, 1 Parker's Cr. Rep. 11; Fairlie vs. Denton, 3 Car. & P. 103; Learned vs. Tillotson, 97 N. Y. 1. The present case differs from those cited, in that we have not here the isolated fact of the receipt of the letters. As stated, one of the letters expressly states that it is in answer to one received from the defendant. Some of them contained instructions as to how he should perform the duties of his agency, and these instructions he appears by other evidence, to some extent at least, to have followed. Wharton’s Cr. Ev., sec. 644, states the rule as follows: ‘ ‘A letter addressed to a party can not be admitted as proof against him unless it be proved that he received it and acted on it, or in some way invited it.” In the celebrated case of Spies vs. People, 122 Ill. 1, text 235, the court held that a letter coming from the possession of the defendant was admissible because it appeared from the face of the letter offered that the defendant had invited it. In the trial of John Horne Tooke; 25 Howell’s State Trials, 130, Lord Chief-Justice Eyre said that letters found in the possession of a defendant were prima facie evidence, but that their effect would depend much upon the circumstances, whether answers to them could be traced, or whether anything had been done upon them. In The Queen vs. Cooper, L. R. I. Q. B. Div. 19, letters received by a defendant in answer to a fraudulent advertisement published by him were admitted in evidence. Some were admitted that had not actually come into his hands, but had only arrived at the postoffice at which he received his mail. In view of these authorities we think there is enough proof of acquiescence and of action based' upon the letters on the part of the defendant to justify their being received in evidence, and to make the rule stated inapplicable to them. They were certainly not irrelevant upon the question whether the defendant was an agent of the foreign corporation,which was a material fact to be proven in the case. 3 Rice on Evidence, p. 743; Rapalje on Larceny, sec. 389.

The eighth assignment of error covers objections made by the defendant in the court below to certain statements made by counsel for the State as to what they expected to prove during the course of the trial. It is admitted in the brief for the defendant (plaintiff in error here) that the court, when the objection was made, cautioned the jury that they must not regard such statements as evidence, and should only consider what was actually proven by the evidence in the case. If we admit that the statements objected to were improper to be made (Dowda vs. State, 74 Ga. 12), the caution of the court to the jury and the instructions given them divested such statements of any power to injure the defendant, and cured the prejudice, if any, caused by their, being made. 1 Thompson on Trials, sec. 960.

On cross-examination of Anton .Trubenbach, a State’s witness, the defendant’s counsel asked him: “Do you know whether or not Mr. Horney and Mr. Thalheim made a settlement of the affairs of that office?” The question was objected to by the State’s counsel upon the grounds (1) that it was not in cross-examination, and (2) that no settlement between the parties would bind the State of Florida. The objections were sustained. The ruling sustaining them is made the basis of the tenth assignment of error. At the time this question was asked the witness was upon the stand for the second time. Upon the first examination he had testified that he was present September 18th; 1894, when Mr. Adolphus Horney, a director of the London office of the foreign corporation called upon the defendant at the office then and before occupied by him (defendant) at Ocala, Florida, and demanded the books and papers and other property of the corporation; that defendant then turned over the office with some of the books and papers to said Horney; others he refused to turn over, saying that they were his private property. Upon this first examination he was cross-examined by defendant’s counsel as much as they desired. The examination of other witnesses intervened before Trubenbach was called the ■second time. This time he identified certain letters and papers as being in the handwriting of defendant, and other papers as being in the handwriting of officials of the corporation, sent from- London to Ocala. The only reference in this examination to Mr. Adolphus Horney was the identification of a book offered in evidence as one that was delivered by the defendant to Mr. Horney when the other property was delivered, September 18th, T894. There is no ground whatever for a claim that the question was in cross-examination of anything testified to by the witness Trubenbach on the direct examination the second time he was called as a witness. If it be that the defendant had the .right to again cross-examine the witness in reference to the matters of the first examination, and about which the witness had been already cross-examined, we consider the question too general in its terms to be considered in cross, even of the first ex- animation. The interrogatory was not limited to any settlement between the defendant and Mr. Horney at the time of the surrender and delivery of the office by the defendant, but would cover any settlement within the knowledge of the witness made to the very time-the question was asked.

The eleventh assignment of error is based upon a refusal of the court to permit defendant’s counsel to-ask the witness Trubenbach the following question on cross-examination: “Is it not true that while Mr. Horney was here on that business, Mr. Thalheim took him to each of the phosphate people in this locality with whom he had been dealing, and got a renewal of all his contracts with those phosphate people for Mr. Horney?” The question was objected to as being-irrelevant, and not being in cross-examination. We-think the objection well taken. The witness had not testified to anything whatever in connection with any renewal of contracts with phosphate people by Mr. Horney, or of any act whatever of the defendant in reference to such renewal of contracts. The defendant could not cross-examine him about matters as to which he had not testified in the direct examination. Williams vs. State, 32 Fla. 315, 13 South. Rep. 834; Adams vs. State, 28 Fla. 511, 10 South. Rep. 106;. Tischler vs. Apple, 30 Fla. 132, 11 South. Rep. 273.

B. Arentz, a witness for the State, upon his direct examination testified, among other things, in substance, that he had a conversation with the defendant; that they were comparing notes, and that he thought defendant said in that conversation that he had made-$40,000, and that he made it in phosphate; would not swear whether defendant did or did not say that he made this sum out of .the Anglo-Continental (late OhlendorfFs) Guano Works, but that he said he made it out of phosphate business. Witness did not know defendant to be engaged in phosphate business on his own account, but only as agent of the Anglo-Continental (late OhlendorfFs) Guano Works. On cross-examination this witness was asked whether the “conversation with defendant was after the settlement between him and Mr. Horney?” He was also asked: “Whatever dispute Mr. Horney and Mr. Thalheim had, had they settled ? ” These questions were objected to by the State as being inadmissible, and not in cross-examination. . These objections were overruled, and the witness testified, in substance, that the conversation he had been testifying about was after the defendant and Mr. Horney had a settlement; that defendant told him that everything was settled up. The record further shows that after the evidence had all been submitted, and one argument for each, the State and the defendant, had been made to the jury, the question arose whether counsel for the defendant would be allowed to argue the question before the jury of a settlement predicated upon the testimony of the witness Arentz. The court then stated to counsel that he did not regard the testimony of Arentz as competent, and that he would not permit argument of that question before the jury, predicated upon such testimony, and that he would so instruct, the jury. This ruling was excepted to. The court then withdrew the evidence of Arentz as to what the defendant told him about the settlement, from the consideration of the jury, but stated to the counsel for the defendant that if they had been misled in any way by the previous ruling ■of the court, that he would permit them to introduce any evidence that they might desire for the defense. After consultation, defendant’s counsel announced that they had no evidence to offer. The ruling of the court excepted to is made the foundation of the thirteenth assignment of error. We consider it as presenting the question of the admissibility of the evidence which was withdrawn by the court from the consideration of the jury. The testimony was proper cross-examination. The witness upon direct examination had testified to statements made by thé defendant. The cross-examination referred to the same conversation, and to other statements made by the defendant in connection with those testified to by the witness in his examination in chief. Williams vs. State, supra, and other decisions of this court therein cited. The Circuit Judge in excluding this testimony announced that he did so “upon the doctrine that a. party is not allowed to produce evidence of his own declarations to another party with reference to an offense with which he is charged, after the offense has been committed.” As a general proposition, the rule stated by the Circuit Judge is undoubtedly . correct. ' If the defendant had offered to prove his statements, to the witness Arentz as original evidence, such evidence would have been clearly inadmissible. The caséis entirely different when the State has offered evidence of inculpatory statements made by the defendant, and the defendant, on cross-examination seeks to-show other exculpatory statements, or statements, deemed exculpatory, made in the same conversation, in reference to the same subject-matter. The general rule laid down by standard authorities in such cases is-that the defendant is entitled to have before the jury all that was said upon the subject upon the particular-occasion, whether prejudicial' or beneficial to him- The State having opened the door by proving a part of the conversation, it can not close it upon the defendant so that he can not offer the other part of the conversation which relates to the same subject-matter. The whole conversation should be before the jury, and they should determine what weight and effect should be given to the whole conversation. 1 Bish. Crim. Pro., sec. 1241, and authorities cited; Wharton’s Crim. Ev., sec. 688; 1 Greenleaf on Evidence, sec. 218; Haisten vs. Hixen, 3 Sneed, 691; State vs. Worthington, 64 N. C. 594; Berry vs. Commonwealth, 10 Bush. 15; State vs. Branstetter, 65 Mo. 149; Massey vs. State, 1 Texas App. 563; Williams vs. Keyser, 11 Fla. 234. The striking out of this testimony of Arentz was technically erroneous but would not be reversible error. The sole purpose of such testimony, however, was to prove that the defendant had, subsequent to his embezzlement of his principal’s money, settled the matter, or restored and returned the embezzled funds. The guilt of the defendant remained the same whether a settlement had or had not been made. Repentance and full restoration of the money embezzled could not have changed the verdict. People vs. Royce, 106 Cal. 173, 39 Pac. Rep. 524; State vs. Pratt, 98 Mo. 482, 11 S. W. Rep. 977; Robinson vs. State, 83 Ga. 166, 9 S. E. Rep. 610; United States vs. Harper, 33 Fed. Rep. 471.

The sixteenth alleged erroneous ruling is the overruling of an objection of the defendant to a question asked a State witness as to how much money the defendant had on deposit in the Merchants National Bank of Ocala on April 21st, 1894. The objection was that it relates to a transaction occurring on a date prior to that named in the indictment. The statute under which the prosecution was being conducted provides that evidence may be given of any embezzlement committed within six months after the time stated in the indictment — Revised Statutes, sec. 2897. Under this statute evidence could not be received of any act of embezzlement committed before May 1st, 1894, the date laid in the indictment. The evidence objected to was not offered for the purpose of showing a substantive act of embezzlement committed before such date, but only as proof of a circumstance which, taken into consideration with other evidence in the cáse, tends to show a specific act of embezzlement within the period provided by the act, and was, therefore, proper to be received in evidence. The act only excludes proof of an actual embezzlement not committed within the period prescribed. It does not exclude proof of every fact or circumstance which tends to prove the main issues in the case, for the reason that such fact or circumstance itself may have happened before the date alleged. The case of Brevaldo vs. State, 21 Fla. 789, was not a case of embezzlement, but the principles determined there throw some light upon the present question. The authorities even go so far as to permit proof of other acts of embezzlement, beside those put in issue by the indictment, when such acts tend to show the fraudulent intent of the defendant in committing the specific embezzlement for which he is being tried. 3 Rice on Evidence, p. 743, sec. 460, and authorities cited.

The eighteenth assignment of error is predicated upon an instruction of the court to the jury, to the practical effect that if it was proven beyond a reasonable doubt that the Anglo-Continental (late Ohlendorff’s) Guano Works was doing business under that name as a corporation, it was sufficient proof of the corporate existence of said corporation. The twenty-first assignment refers to an instruction to the effect that similar proof that said company was a corporation de facto, and did business as a corporation, was sufficient proof of corporate existence. It is insisted upon the part of the plaintiff in error that corporate existence should be proven by evidence that such company was a corporation de jure. The contention can not be sustained. In Duncan vs. State, 29 Fla. 439, 10 South. Rep. 815, it was held under an indictment for the wilful and malicious burning of a railroad bridge alleged to be the property of a corporation, that it was sufficient to prove that such corporation was a corporation de facto, in the exercise of corporate functions and franchises, whether it was a corporation de jure or not. The present case is attempted to be distinguished from the case cited. The distinction is not well taken. The same rule will apply to embezzlement, larceny and kindred offenses. The very language of the instructions complained of has been upheld in a great number of cases. In State vs. Grant, 104 N. C. 908, 10 S. E. Rep. 554, in an indictment for larceny of the property of a corporation it was held that it is not 1 ‘necessary to produce the charter of an incorporated company to prove the fact of incorporation. It is sufficient if it is established by other testimony that it carried on its business in the name set out in the indictment, and was well known by that designation.” This ruling was in language quoted from Roscoe’s Crim. Ev., 868, and numerous other authorities are cited as being to the same effect. The same proposition is also stated in Rapalje on Larceny, sec. 151, and other authorities are •cited. That the incorporation of the company whose funds are alleged to have been stolen or embezzled is sufficiently proven by showing that it is a corporation de facto, and doing business as such, is established by a great number of authorities, a few of which are: Rapalje on Larceny, sec. 151; People vs. Barric, 49 Cal. 342, and other California cases cited in the text; Smith vs. State, 28 Ind. 321; 2 Bish. Crim. Pro., sec. 752;, State vs. Hopkins, 56 Vt. 250; Shinn vs. Commonwealth, 32 Gratt. 899. In State vs. Collens, 37 La. Ann. 607, the charge was the embezzlement of funds of a foreign corporation, and the court said: “In prosecution for embezzlement of funds of a foreign corporation, it is sufficient to prove the de facto existence of the corporation, and it is not essential to prove the law of the State under which it was incorporated and the conformity of the charter thereto.”

The nineteenth assignment is in reference to a charge of the court given the jury at the request of the State. The portion of such charge' which is especially urged as being erroneous is as follows: “It must appear from the evidence that the moneys, funds, credits or assets of the corporation, alleged to have been embezzled, were, previously to their wrongful appropriation, lawfully in the possession and custody of the defendant, and that they were, while so held by him, wrongfully converted to his own use. It is not, however, necessary that he should have been in the exclusive custody or possession at the time of the conversion to-his own use, in order to constitute the offense. If the evidence establishes that the business and assets of the corporation were actually or practically intrusted to the care and management of the defendant, so that by virtue of his position as servant, or agent, he had not merely access tq, or a constructive holding of, but such actual custody of the funds, moneys and credits of the corporation as enabled him to have and exercise control over the same, that would place him in the lawful possession of said funds or other property; and, if, while so lawfully in possession of such assets, funds and credits, or other property, committed to his care and custody for the benefit of the Anglo-Continental (late OhlendorfFs) Guano Works, he wrongfully converts any part or portion of said assets to his own use with intent to injure or defraud the said corporation, he would thereby commit the offense of embezzlement. If, therefore, any property of the said corporation, whether consisting of money, funds, credits or bills receivable, or other assets are shown by the proof to have been in the defendant’s possession as aforesaid in his capacity as servant, or agent of the Anglo-Continental (late Ohlendorff’s) Guano Works, so that he held the same for and on account of, or in trust for, the benefit of said corporation; -and if it is further shown to your satisfaction beyond a reasonable doubt that while holding such moneys, funds or other property under and by virtue of his said position, employment or relation to the corporation, the defendant wrongfully and intentionally converted the same, or any portion thereof, to his own use, with intent to injure or defraud the said corporation, he would be guilty of the crime of embezzlement.” The indictment distinctly charges the defendant with the embezzlement of money.. Section 2897 Revised Statutes provides that upon such indictment “it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a variance, if it be proved that any bullion, money, notes, banknotes, check, draft, bill of exchange or other security for money, * * was fraudulently embezzled,” etc. It will be noted that all of the things mentioned as provable under the head of money are either bullion, which means uncoined gold and silver in the mass, or foreign or uncurrent coin, or tilings that pass current or in business transactions, are used as a substitute for monév. Elementary rules of criminal law provide that the proof in criminal'cases must correspond with the allegations of the indictment and be confined thereto. Under the indictment under which the trial was had the defendant could not be convicted unless he had embezzled some of the specific things prescribed by the statute. Assets generally, and property generally, are not included within the terms of the statute, The instructions complained of are, therefore, admitted of the construction by the jury that the defendant could be convicted for the embezzlement of other and different property than that for which he was indicted, and were, therefore, erroneous.

The court also instructed the jury as follows: “You are not required under the evidence in this case to find that the exact amount stated in the indictment was embezzled. If, under the circumstances and conditions already mentioned, you find that the defendant converted to his own use money, funds or assets of the said corporation, no matter how small the amount may have been, if shown by the evidence in the case, it will be sufficient to sustain a verdict of guilty under this indictment. Nor are you required in your verdict, if you find the defendant guilty, to specify the exact amount so embezzled. ’ ’ Embezzlement under the statute upon which the .indictment in this, case was found is punished the same as if the party had been convicted of larceny. Revised Statutes, sec. 2457. Therefore, under the act in force at the time the offense is charged to have been committed, embezzlement of property of the value of one hundred dollars or more may be punished by imprisonment in the State prison not exceeding five years, or in the county jail not exceeding twelve months, or by line not exceeding one thousand dollars. Revised Statutes, sec. 2440. Embezzlement of property of the value of less than one hundred dollars may be punished by imprisonment not exceeding six months in the county jail, or by fine not exceeding one hundred dollars. Revised Statutes, secs. 2351, 2441. Therefore, in prosecutions for embezzlement, like the case before us, it is essential to ascertain the value of the embezzled property, in order to inflict the penalty which the law prescribes for the offense. • Therefore, the charge complained of was erroneous. A verdict of guilty under such instructions would subject the defendant to the punishment provided for the highest grade of offense, when he was in fact only guilty of the lower grade, and subject to a milder penalty, of which lower grade it was the intention of the jury to convict him. Therefore, instead of the instructions given, such instructions should have been given to the j nry as in the event of their finding the defendant guilty only of the lower grade of the offense, they could so express it in their verdict, and thus shield the defendant from the greater punishment provided for the higher 'grade of the crime. Williams vs. People, 24 N. Y. 405; Rhodihan vs. People, 5 Parker’s Crim. Rep. 395. The instructions given would have been correct if the same penalty was provided for all embezzlements of the kind charged, against the defendant, without reference to the amount thereof. When the punishment depends upon the amount embezzled, it becomes important for the court to know such amount as ascertained by the verdict of the jury; otherwise it can not tell what penalty the law requires to be imposed. In the present case the court could not determine that it had the power to sentence the defendant to imprisonment in the State prison until it had been determined by the verdict that the amount of the embezzlement exceeded one hundred dollars. Prom the verdict under the charge of the court it does not necessarily follow that the defendant has been convicted of the embezzlement of property exceeding one hundred dollars in value, yet he has been sentenced to imprisonment in the State prison, which could not have been done except upon such conclusion. Ray vs. State, 1 G. Greene (Iowa), 316, S. C. 48 Am. Dec. 379; State vs. Redman, 17 Iowa, 329; Highland vs. People, 1 Scam. 392; Locke vs. State, 32 N. H. 106; Miles vs. State, 3 Texas App. 58; State vs. Herring, 1 Brev. 159. The charge may not be technically incorrect in stating that the jury need not specify the exact amount embezzled, but was evidently misleading. It is not essential to state the exact value of the property fraudulently converted, but it ought to be stated whether it is less than one hundred dollars, or whether it is that amount or more. This conclusion is'reached with reference to the Revised Statutes under which prosecution was had, and not to the amendments thereto. Acts 1895, pages 159-160.

The twenty-eight assignment relates to the refusal • of the court to give some instructions requested by the defendant: ■ One of these was the fourth, as follows: “If you believe from the evidence that a full and fair settlement was had between the defendant and the Anglo-Continental (late OhlendoriF s) Guano Works at the proper time and in due course of the agency, and if, in said settlement, a fair disclosure was made by defendant aDd a proper accounting and adjustment made and agreed upon, then you can not find the defendant guilty under the indictment.” This instruction was properly 'refused. There was no evidence in the case to which it was applicable. Ev.en if the evidence as to defendant’s statements to the witness Arentz about a settlement had not been stricken out, it would not be a sufficient predicate for the charge asked for. Even if we admitted that such evidence was affirmative proof of a settlement, it was only as to the bare face of a settlement. The time, date, terms or nature of such settlement were not stated. It afforded no predicate for a charge upon the subject of “a full and fair settlement at the proper time and in due course of agency,” or of a “fair disclosure or proper accounting and adjustment.”

The sixteenth instruction requested by the defendant was as follows: “The court instructs the jury that it is incumbent upon the prosecution to prove every material allegation of the indictment as therein charged. Nothing is to be presumed or taken by implication against the defendant; the law presumes him innocent of the crime with which he is charged until he is proven guilty beyond a reasonable doubt by competent evidence. And, if the evidence in this case leaves upon the minds of the jury any reasonable doubt of defendant’s guilt, the law makes it your duty to acquit him.” This instruction states correct propositions of law, except that phrase which is in the following words: “Nothing is to be presumed or taken by implication against the defendant.” While the presumption upon the main vital fact in issue — -the guilt or innocence of the defendant — whether he did the very act charged against him, is always in favor of innocence, it can not be said that nothing is to be presumed or taken against him by implication. As to collateral facts affecting the main question of guilt or innocence, the presumption of law is often against the accused. It is not necessary to give many, but we give a few, illustrations of the presumptions which are always against the defendant; he is presumed to be-sane, to have intended the natural consequences of his acts, from the perpetration of a fraudulent act to have had a fraudulent intention, etc. Lawson on Presumptive Evidence, p. 493 et seq.; Rapalje on Larceny, p. 251; 1 Bish. New Crim. Law, sec. 784; 1 Bish. Crim. Pro., sec. 1096 et seq.

The twenty-ninth assignment of error is, that the court erred in overruling defendant’s motion in arrest of judgment. This motion is predicated upon alleged defects in the indictment. The statute under which this indictment was drawn says that if any * agent * embezzles or fraudulently converts to his own use, or takes or secretes with intent so to do, * any property, etc. It is argued that there should under the statute have been an allegation in the indictment as to the intention with which the embezzlement was done. We construe the phrase “with intent so to do” to refer to the taking or secreting of property. That it, construed with other portions of the statute, was intended to provide a penalty for the taking and secreting of property by a party with the intent to embezzle it or convert it to his own use. The phrase does not refer to the act of embezzlement. To so construe it, we would have a nonsensical provision mak ing it criminal for a party to embezzle and fraudulently convert property to his own use with the intent to embezzle it or fraudulently convert it to his own use. State vs. Combs, 47 Kansas, 136, 27 Pac. Rep. 818. Many authorities are cited by counsel to the effect that where a statute makes the intent with which the act is done a part of the description of the offense, that the indictment should allege that the act was done with the criminal intent. These authorities have no bearing upon the present indictment. The act (Rev. Stats., sec. 2897) says “it shall be sufficient to allege generally in the indictment the embezzlemert, fraudulent conversion * of money to a certain amount, without specifying the particulars of such embezzlement.” They would be applicable to an indictment for taking and secreting the property with the intent to embezzle it, and in such a case, according to such authorities, it would be essential to charge the intent with which the act was done. But as the indictment is for the embezzlement itself it is not necessary to charge the intent with which the act was done. Rapalje on Larceny, sec. 383.

The next objection urged against the indictment is, that it is not sufficiently definite as to the place where the offense was committed. That two places having been mentioned in the indictment, it does not appear that the expression “then and there,” when used in the latter part of the indictment, does not refer to the Empire of Germany, and whether it does not charge essential portions of the offense to have been committed in the foreign jurisdiction. The indictment is not so clear and definite as it should be in this respect, and does not commend itself as a precedent. The de 'fendant plead to it and went to trial upon it, and we think it sufficient in form to support a judgment upon -a verdict rendered upon it. In Connor vs. State, 29 Fla. 455, 10 South. Rep. 891, where the indictment was similar to the present one, but was far more indefinite and uncertain, the point arose on a motion to quash before pleading. This court has been liberal in allowing motions in arrest of judgment for defects in the indictment upon which the trial was had, and some of the older reports announce a liberal doctrine in reference to such motions. Murray vs. State, 9 Fla. 246. An examination of the facts of these cases, however, will show that no judgment has been arrested in this State after trial simply because the indictment was technically vague and indefinite. The judgment has only been arrested where the indictment has omitted a material allegation of some essential element of the offense. Stevens vs. State, 18 Fla. 903; Anderson vs. State, 38 Fla.-, 20 South. Rep. 765.

In preparing this opinion several assignments of error which have been argued before us have not herein been specifically passed upon. Unless it be supposed that we have overlooked them, we deem it proper to say' that we have omitted to state herein our conclusions upon them for several reasons. Among such reasons are, that some of them are subject to the same •principles and reasoning stated and employed in disposing of others, and others of them did not seem to require serious consideration.

The errors stated the judgment and sentence of the Circuit Court is reversed and a new trial awarded.