Garfunkel v. State

Cockrell, J.

An information was preferred against Garfunkel charging him with the embezzlement of numerous petty items, amounting in the aggregate to something over two hundred dollars. Upon the trial a verdict was rendered finding him “guilty as charged.”

This court in the case of Thalheim v. State, 38 Fla. 1G9, text 205, 20 South. Bep.. 938, held, that as the crime of embezzlement is graded into felonies and misdemeanors, according as the value of the property so fraudulently codverted exceeds or not a certain amount, the verdict should make it clear whether the higher or the lower grade of the crime had been made out. The citations therein relied on proceed upon the idea that it is not necessary for the State to prove the value as laid in the information, and- therefore the value so laid not being an essential part of the charge, a finding by the jury of guilty as charged is not a finding of the specific values as alleged by the pleader.

We have less hesitation in reversing for this somewhat technical error because no particular item involved is shown to be worth more than three or four dollars; the trial judge seems to have been in doubt as to whether there had been conviction of a felony or a misdemeanor, as indicated by the sentence imposed; but more especially because an examination of the evidence convinces us that the transactions complained of do not in law amount to a crime, or anything more than an inability to pay a debt the minute it became due.

Judgment reversed.

Shackleford, C. J., and Taylor, Hocker and Whitfield, J. J., concur.