George J. Alden, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 18 Fla. 187

Mr. Justice VanValkenburgh delivered the opinion of the court. At the Spring Term of the Circuit Court, held in and for Volusia county, in the year one thousand eight hundred and seventy-eight, the grand jury found an indictment, against the plaintiff in error, the charging portion of which is as follows: “ The grand jurors of the State of Florida, enquiring in and for the body of the connty of — , upoS their oaths do present that George J.

Alden, late of the county of Volusia aforesaid, in the circuit and State aforesaid, laborer, on the first day of October, in the year of our Lord one thousand eight hundred and seventy-six, with force and arms at, in the county of Volusia aforesaid, the said ^George J.

Alden being then and there Superintendent of Public Schools and Secretary of the Board of Public Instruction in and for the county of Volusia aforesaid, the said Board of Public Instruction being a corporation then and there duly, legally established, organized and existing by virtue of the laws of the State of Florida, did, by virtue of his said office of Superintendent of Public Schools and Secretary of the said Board of Public Instruction as aforesaid, and while the said George J.

Alden was employed in his said office of Superintendent of Public Schools and Secretary of the Board of Public Instruction, have, receive and take into his possession certain property, to-wit: school-books of the value of three hundred dollars of the goods, chattels and property of the said Board of Public Instruction, and the said school-books then and there unlawfully, fraudulently and feloniously did embezzle,” &c.

The counsel for the defendant moved to quash this indictment for several reasons, among which are the following : “ The record of the court does not show that the grand jury has ever brought in any true bill of indictment against the defendant at said term of court.” “ Because there is no such office in the State of Florida or county of Yolusia as County Superintendent of Public Schools, named and described in the indictment as the officer who received the money charged to have been appropriated.” . The motion was overruled, and the counsel for the defendant excepted.

The cause was tried, and the defendant was found guilty, whereupon his counsel made a motion in arrest of judgment, assigning many reasons, among which are the following : Because the court refused to quash the indictment on a motion heretofore made, and also because there is no such office known to the law as the one named in the indictment, and by which the defendant is described. The court overruled the motion, the counsel excepted, and the case is here on writ of error. In the year one thousand eight hundred and sixty-nine the Legislature enacted a law entitled “

An act to establish a uniform system of common schools and a university.” (Laws, 1869,

Chapter 1686.)

Section 2 of this act provides that “ the officers of the department of public instruction shall be a Superintendent of Public Instruction, a State Board of Education, a Board of Public Instruction for each county, a Superintendent of Schools for each county, local School Trustees, Treasurers and agents.” It establishes the State Board of Education, providing that it shall consist of the Superintendent of Public Instruction, the Secretary of State and the Attorney-General, the Treasurer of the State being made the Treasurer of the Board. It is made a corporate body, with full power to perform all corporate acts for educational purposes. By

section 14 it is enacted that “ each Board of Public Instruction is hereby constituted a corporate body by the name of ‘ The Board of Public Instruction for the county of-, State of Florida,’ and in that name may acquire and hold real and personal estate,” &c. This statute further provides in

section 17 that “ the County Superintendent of Schools shall be Secretary and agent of the Board.” The indictment charges that the defendant, by virtue of his office of “ Superintendent of Public Schools and Secreof the Board of Public Instruction in and for the county of Yolusia aforesaid, the said Board of Public Instruction being a corporation then and there duly, legally established, organized and existing by virtue of the laws of the State of Florida,” did unlawfully, &c., embezzle certain schoolbooks, the property of such Board of Public Instruction.

The title of this corporation is fixed and determined by lawT as “ The Board of Public Instruction for the county of Yolusia, State of Florida.” The title of the officer is also determined as “ Superintendent of Schools.” It is true the same act speaks of this officer as County Superintendent of Schools, making him Secretary and agent of the Board, but nowhere in such act is he designated as “ Superintendent of Public Schools,” nor is the corporation mentioned as u The Board of Public Instruction in and for the county of Yolusia aforesaid.” There is no such corporation known to the law as the one described in this indictment, wffiich it is claimed was the owner of the school-books alleged to have been embezzled, nor is there any officer of said corporation known to this law bearing the title of “ Superintendent of Public Schools and Secretary of the Board of Public Instruction.” There is clearly a misnomer of the corporation which it is alleged the defendant defrauded, as well as a misnomer of the officer of that corporation, the defendant himself.

By an examination of the statute books of the State the true name of both corporation and officer could have been discovered. Commonwealth vs. Pope, 12 Cushing, 272; Mathews vs. The State, 33 Texas, 102; 1 Bishop C. P. §682; The State vs. Waters, 3 Brev., 507. Though this error is fatal, and warrants the arrest of the judgment, we will call attention to one other error. The statute of this State (Thomp.

Dig., p. 522,) directs that “ all indictments shall be signed by the prosecuting attorney, and endorsed on the back by the foreman of the grand jury, when so found, ‘ a true bill,’ and when not found ‘ not a true bill,’ and signed by him,” &c. The indictment before us is properly signed by the prosecuting attorney, but there is no such endorsement as is required by that statute anywhere upon it. Neither the words “ a true bill,” nor the name of the foreman of the grand jury, or the date of its filing by the clerk, appear in or upon the indictment.

Other errors are assigned, arising upon exceptions taken on the trial, which it is not now necessary to notice, as the judgment must be arrested for those above considered. Judgment arrested.