whether the offense as charged in the first indictment is identical with that charged in the second indictment.

odd thousand dollars charged to have been embezzled was a "balance of account" in the exact language of the statute. The whole in

J. B. Stirling, Atty. Gen., for the State. dictment must be considered in the light of J. W. Cassedy, for appellee.

the proof admissible under it, and in so doing no doubt exists as to whether or not it was drawn under this statute. Let us examine it for a moment. The indictment charges the fiduciary character-i. e., it charges that Caston was the cashier, agent, employé, etc., of the Pike County Bank; that while acting as cashier there was intrusted to his keeping and care a large sum of money, to wit, $100,000, of the money and property of the bank; that then and there, and while acting in the above capacity, and being intrusted with the funds, he embezzled the sum of $60,478, etc. The above indictment, being the one on which Caston was tried, covered his fiduciary capacity, and arraigned him on same for a period of time beginning on January 16, 1905, to September 8, 1908. The other indictments, on which it is now sought to try Caston, arraign him for the same period of time, about a default occurring in the same fiduciary capacity, differing from the first indictment only in the fact that it is alleged that a different amount was embezzled.

We think the court below was correct in holding that this could not be done, and the action of the court below in so holding is approved.

POLK v. STATE. (No. 14,063.)
(Supreme Court of Mississippi. Nov. 29, 1909.)
W. A. Roane, Judge.
Appeal from Circuit Court, De Soto County;

MAYES, J. It is beyond question on this record that the first indictment against Caston, and the one on which he was tried, was an indictment under section 1136 of the Code of 1906, and the procedure was under section 1436 of the Code; and, this being the case, there can be no further prosecution of Caston, on the part of the state, for any act of embezzlement committed by him, while engaged in the particular fiduciary capacity specified in the indictment, at any time prior to the finding of the indictment. If the state does not want to bring about this result, it must conduct its prosecutions for embezzlement in the common-law way, and not undertake to take advantage of a statute, enacted solely for the purpose of removing the many obstacles with which it was frequently confronted in prosecutions for embezzlement, in being required to allege and prove the specific act. In the case of a person constantly receiving things of value for deposit, coming from various sources and at various times, as in the case of a bank cashier, or other person acting in a similar fiduciary character, it was oftentimes exceedingly difficult to make that specific proof required by the common law on an indictment for embezzlement of a person acting in the above character. It was found equally difficult for the indictment to so particularize. The state would have no difficulty in showing a general shortage on the balance of account; Alex Polk was convicted of murder, and apbut the specific acts of embezzlement were peals. Affirmed. I often so adroitly concealed that they could not be discovered, many times resulting in a defeat of justice. It was to overcome this difficulty that section 1436 of the Code was enacted, which provides that: "In an indictment for embezzlement of money or funds by a treasurer, cashier, or other fiduciary, it shall be sufficient to describe the same as a 'balance of account' and of a certain value." When the state proceeds under this section, its effect is to arraign the fiduciary on all the acts occurring prior to the finding of the indictment, and, when so arraigned and tried, its effect is to preclude further prosecution as effectively as if an expert bookkeeper had gone through the whole account, discovering each day, time, and amount of the embezzlement, and the party so charged had been indicted and tried on each separate act. When we examine the indictment on which Mr. Caston was tried, we see that it is almost literal compliance with the language of the statute. We would be blind to justice and forgetful of the purpose of this statute if, in the face of these facts, we did not hold that the state was precluded from further prosecution, even in the face of the fact that

an

Farley & Lauderdale, for appellant. Geo. But. ler, Asst. Atty. Gen., for the State.

PER CURIAM. Affirmed.

THOMAS v. STATE. (No. 14,057.)
(Supreme Court of Mississippi. Nov. 29, 1909.)
Appeal from Circuit Court, Jackson County;
W. H. Hardy, Judge.

William Thomas was convicted of crime, and appeals. Affirmed..

Geo. Butler, Asst. Atty. Gen., for the State.
PER CURIAM. Affirmed.

GREER v. YAZOO & M. V. R. CO.

(No. 14,085.)

(Supreme Court of Mississippi. Nov. 29, 1909.) Appeal from Circuit Court, Bolivar County; Sydney Smith, Judge.

Action by Julia L. Greer against the Yazoo & Mississippi Valley Railroad Company. Judg ment for defendant, and plaintiff appeals. Affirmed.

Sam Cook and Jones & Hardee, for appellant. Mayes & Longstreet, for appellee.

Action by Elmonia Madison against the In- Action between L. E. Cooper and the Meridian dependent Order of Sons and Daughters of Ja-Wagon Factory. From the judgment, Cooper cob. Judgment for plaintiff, and defendant ap- appeals. Affirmed. peals. Affirmed.

(58 Fla. 214)

DICKINSON v. DICKINSON.
(Supreme Court of Florida, Division A.
26, 1909.)

DIVORCE (8 308*)-SUPPORT OF CHILDREN-LI-
ABILITY AFTER DIVORCE.

The

der as to the custody of the elder son, Neville, who elected to live with the mother. The Oct. mother in this action seeks to recover of the father for the son Neville's support. The case was tried on issues made by a plea of never was indebted, and a plea setting up Where a divorce decree gives the custody the decree above quoted and a compliance of a young son to the mother, but makes no therewith by the father. As the special plea order as to the custody of an older son, who elects to live and does live with the mother, and was proven, its construction was for the the decree contains an order providing for an court, and this was determined by giving an annual sum of money to be paid to the mother, affirmative charge for the defendant. "for her to spend, hold, and use in such way and effect of the charge was to hold that the demanner as she may see fit for the benefit of herself and the children," and such decree is cree relieved the father of liability for the construed by the court making it as relieving elder son's support, when he by choice lived the father of liability to the mother for support with his mother, to whom an allowance had of the elder son while living with her, notwith-been made, "for her to spend, hold, and use standing a statement in the decree that the amount is given during the life of the mother in such way and manner as she may see fit "as alimony in full," the construction will not for the benefit of herself and the children." be held to be erroneous. secured to the wife during her life was “as The provision in the decree that the amount alimony in full" does not qualify the mean. ing of the other portion of the decree last above quoted, relative to spending the amount "for the benefit of herself and the children." The decree is fairly susceptible to this construction placed upon it by the judge who rendered it, and this court will not hold it to be error. See Pearson v. Helvenston, 50 Fla. 590, text 594, 39 South. 695. Issue being joined on the plea, its proof and construction was a bar to recovery under the facts of this case. Therefore the judgment is affirmed.

[Ed. Note. For other cases, see Divorce, Dec. Dig. § 308.*]

(Syllabus by the Court.)

Error to Circuit Court, Volusia County; M. S. Jones, Judge.

Action by Margaret J. Dickinson against John M. Dickinson. Judgment for defendant, and plaintiff brings error. Affirmed.

Stewart & Bly, for plaintiff in error. dis & Fish, for defendant in error.

Lan

WHITFIELD, C. J. The plaintiff in error brought an action of assumpsit in the common counts against the defendant in error. By direction of the court a verdict was rendered for the defendant, and from a judgment thereon the plaintiff took writ of error. The parties were formerly husband and wife. A decree divorcing them contains the following:

(58 Fla. 415)

CITY OF OCALA v. ANDERSON. (Supreme Court of Florida, Division A. Oct. 26, 1909.)

1. EQUITY (§ 310*) — ANSWER - FAILURE TO SIGN, SEAL, OR VERIFY.

"It is further ordered and decreed that the complainant be and she is hereby awarded the income from the sum of $10,000 in cash for and during the term of her natural life as alimony in full, the said $10,000 to be placed by the defendant, John M. Dickinson, in the hands of some trust company or individual, subject to agreement between the An answer, without signature, seal, or vericomplainant and defendant, the income only fication by or for the defendant, may be treated of the said $10,000 to be turned over to the as a nullity, and a decree pro confesso entered. said Margaret J. Dickinson as it accumu-Dig. § 612; Dec. Dig. § 310.*] [Ed. Note. For other cases, see Equity, Cent. lates, for her to spend, hold, and use in such 2. EQUITY (8 420*) — RELIEF Awarded — Deway and manner as she may see fit for the benefit of herself and the children; the said principal of $10,000 to be invested for and during the natural life of the said Margaret J. Dickinson, and on her death the said principal sum of $10,000 shall be turned over, share and share alike, to the said Gordon M. and Neville S. Dickinson, the two sons born of the said marriage, or their issue, and in case of the death of either without issue then to the survivor, the same to be their own property absolutely."

CREE PRO CONFESSO.

A decree pro confesso entitles the complainant to the relief for which a proper predicate has been laid in the bill of complaint.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 970; Dec. Dig. § 420.*] 3. EMINENT DOMAIN (§ 274*)-IMPROVEMENTS -INJUNCTION.

Where a bill in equity, brought to enjoin the construction by a city of a highway on title and possession of the complainant, and the complainant's land, alleges in specific terms the acts of the officers and agents of the city in constructing the highway on the land without au

The decree awarded the custody of the thority of law or notice to or permission from or compensation to the complainant, and pays for appropriate injunction, the relief prayed

son Gordon to the mother, but made no or

may be granted, whether the city authorized the | ant's real estate, that may be enjoined. acts of its agents or not.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §8 765-768; Dec. Dig. § 274.*] 4. INJUNCTION (§§ 5, 133*)-MANDATORY ORDER-RESTORATION OF PROPERTY-TIME OF

ORDER.

Under special circumstances warranting it, a mandatory order may be made by a court of equity to restore to its former condition prop erty that has been trespassed upon. Such mandatory decrees should, except in rare cases, be made only on final hearing.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 4, 302; Dec. Dig. §§ 5, 133.*]

(Syllabus by the Court.).

Whether the city authorized its agents and
officers to violate the complainant's rights or
not, it is alleged they were doing so as agents
and officers of the city, and they were prop-
erly enjoined. Under the special and general
prayer, and the facts alleged, it was not im-
proper for the court to incorporate in its final
decree a mandate to restore the property to
its condition at the time the unlawful con-
struction of the street thereon was begun.

Taylor v. Fla. E. C. Ry., 54 Fla. 635, 45
South. 574, 16 L. R. A. (N. S.) 307, 127
Am. St. Rep. 155; Fla. E. C. Ry. v. Taylor,

Appeal from Circuit Court, Marion Coun- 56 Fla. 789, 47 South. 345. ty; W. S. Bullock, Judge.

Bill by H. L. Anderson against the City of Ocala. Decree for complainant, and defendant appeals. Affirmed.

Davis & Martin, for appellant. H. M. Hampton, for appellee.

The decree is affirmed.

SHACKLEFORD and COCKRELL, JJ.,

concur.

TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion.

TIONS.

TELFAIR v. STATE.

26, 1909.)

(58 Fla. 110)

WHITFIELD, C. J. The appellee brought a suit in equity in the circuit court for Marion county to enjoin the city of Ocala from unlawfully constructing a public street upon (Supreme Court of Florida, Division A. Oct. appellee's land against his consent, alleging that no condemnation proceedings had been taken to subject the property to the public 1. CRIMINAL LAW (§ 814*)-TRIAL-INSTRUCuse, and no compensation for such use had been made or tendered. An answer, without signature or seal or other verification by the defendant city or its officers or agents, was disregarded, and a decree pro confesso was entered by order of the court, and a final decree as prayed was rendered, from which the defendant appealed.

An answer, without signature, seal, or verification by or for the defendant, may be treated as a nullity, and a decree pro con

In a criminal prosecution for uttering a forged instrument, a charge that, "If you believe from the evidence that the defendant himself how guilty the evidence shows him to be of utforged the instrument in question, no matter tering it, you must find him not guilty," is properly refused, since whether the defendant was guilty of the forgery was not within the issues being tried. For the same reason, pleas and evidence as to a former acquittal of the charge of forgery were properly rejected.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 814.*]

EXCEPTIONS-MATTERS TO BE INCLUDED IN. motion for new trial should be incorporated in Evidence dehors the record in support of a the bill of exceptions.

fesso entered. See Worley v. Dade County Se-2. CRIMINAL LAW (§ 1124*)-REVIEW-BILL OF curity Co., 52 Fla. 666, 42 South. 527; Ballard v. Kennedy, 34 Fla. 483, 16 South. 327; Dudley v. White, 44 Fla. 264, 31 South. 830; Kahn v. Weinlander, 39 Fla. 210, 22 South. 653; section 1877, Gen. St. 1906.

A decree pro confesso entitles the complainant to the relief for which a proper predicate has been laid in the bill of complaint. Price v. Boden, 39 Fla. 218, 22 South. 657; City of Orlando v. Equitable Building & Loan Ass'n, 45 Fla. 507, 33 South. 986.

The bill of complaint alleges in specific terms the title and possession of the complainant to and of the land, and the acts of the officers and agents of the defendant in constructing a highway on the land without authority of law or notice to or permission from or compensation to the complainant, and prays for an appropriate injunction. A decree in substantial accord with the allegations and prayer, and the rights of the complainant on the case-made, was entered. The construction of the street as alleged is an unconstitutional taking of the complain

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2946-2948; Dec. Dig. § 1124.*]

3. CRIMINAL LAW (§ 1169*)-WRIT OF ERRORHARMLESS ERROR-ADMISSION OF EVIDENCE.

Where a written instrument is admitted in evidence, testimony as to its then and its former condition may not be reversible error.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1169.*]

4. CRIMINAL LAW (§ 432*)—WRITTEN INSTRUMENT-ADMISSIBILITY.

When a written instrument is relevant evi

dence, the name by which it is called is immaterial.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 432.*]

5. WITNESSES (§ 286*) — REDIRECT EXAMINA

6. CRIMINAL LAW (§ 1166*)-HARMLESS ERBOR-REMARK OF COURT.

The action of the court in saying to counsel during the argument that a paper in evidence is not a rent note, but an evidence of a purchase, and that counsel must not read a part of the instrument, and make argument on it, without reading all of it, is not reversible error. [Ed. Note.-For other cases, Law, Dec. Dig. § 11662.*]

see Criminal

to this ground appear in the transcript outside of the bill of exceptions. Evidence dehors the record in support of a motion for new trial should be incorporated in a bill of exceptions.

A witness testified as to the difference between the alleged forged instrument when it was issued and when offered in evidence be

7. CRIMINAL LAW (§ 1159*)-REVIEW-CON- fore the instrument was filed. As the inVICTION SUPPORTED BY EVIDENCE.

Where there is evidence to sustain a second verdict of guilty, and no errors appear in the record, the judgment will be affirmed.

[Ed. Note. For other cases, see Criminal Low, Cent. Dig. § 3081; Dec. Dig. § 1159.*] (Syllabus by the Court.)

8. CRIMINAL LAW (8 844*)-TRIAL-INSTRUCTIONS-ASSIGNMENT EN MASSE.

An assignment en masse, on a refusal to give instructions containing separate propositions, cannot be considered further than to ascertain if any one of the instructions was properly rejected.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2025; Dec. Dig. § 844.*] Error to Circuit Court, Jackson County; J. E. Wolfe, Judge.

William Telfair was convicted of uttering a forged instrument, and he brings error.

Affirmed.

W. E. B. Smith, for plaintiff in error. Park Trammell, Atty. Gen., for the State.

WHITFIELD, C. J. Plaintiff in error has for the second time been convicted in the circuit court for Jackson county of uttering a forged instrument. The former conviction was reversed. Telfair v. State, 56 Fla. 104, 47 South. 863.

On this writ of error the overruling of the motion for new trial is the only error assigned.

The ground of the motion for new trial, that the court erred in refusing to give 14 different requested instructions containing separate propositions, is treated as an assignment en masse, and cannot be considered here, further than to ascertain if any one of the refused instructions was properly rejected. Kirby v. State, 44 Fla. 81, 32 South. 836.

"If

strument was filed in evidence, there was no reversible error in receiving the testimony as to its former and then condition.

Another paper, called by different names, introduced to show the obligation for which the forged instrument was given, was not improperly admitted in evidence. Its contents showed its relevancy, and the name by which it was called was immaterial.

Testimony given on redirect examination is not necessarily subject to the rule governing evidence in rebuttal, and in this case evidence given on redirect was not improperly received.

The action of the court in saying to counsel for the defendant that an instrument in evidence was not a rent note, but an evidence of a purchase, and that counsel must not read a part of the instrument, and make an | argument on it, without reading all of it, was not an abuse of discretion, calling for a reversal of this judgment.

There is evidence to sustain this, the second, verdict of guilty on the charge here made, and the record does not disclose errors for which the judgment should be disturbed.

Let the judgment be affirmed

SHACKLEFORD and COCKRELL, JJ.,

concur.

TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion.

(58 Fla. 391)

BOARD OF PUBLIC INSTRUCTION OF
POLK COUNTY v. BOARD OF COM'RS
OF POLK COUNTY.

(Supreme Court of Florida, Division A. Oct. 26,
1909.)

CONSTITUTIONAL LAW (§ 24*)

IMPLIED

AMENDMENT OF CONSTITUTION. A Constitution may be amended by implication in the adoption of amendments that by fair intendment and meaning and in effect ac complish such a result.

One of the refused instructions was: you believe from the evidence that the de-1 fendant himself forged the instrument in question, no matter how guilty the evidence shows him to be of uttering it, you must fnd him not guilty." This instruction was properly refused, because the charge against the defendant was uttering a forged instrument, and whether he was guilty of the for-2. CONSTITUTIONAL LAW (§ 24*)-REPUGNANgery was not with the issue being tried.

For the same reason, there was no error in rejecting pleas and evidence as to a former acquittal of a charge of forgery.

The ground of the motion for new trial, that one of the jurors was asleep while a portion of the charge was being given, cannot be considered here, as the affidavits relating

[Ed. Note.-For other case, see Constitutional Law, Cent. Dig. § 22; Dec. Dig. § 24.*]

CY BETWEEN AMENDMEnt and ORIGINAL-
IMPLIED REPEAL.

Where there is a repugnancy between a constitutional amendment and some provision in the original, which cannot be so construed as to have them both stand and leave to each a legitideemed to have been repealed by the amendment. mate office to perform, the original must be

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 22; Dec. Dig. § 24.*]