State v. Sasso, 1106
| Decision Date | 29 May 1952 |
| Docket Number | No. 1106,1106 |
| Citation | 20 N.J.Super. 158,89 A.2d 489 |
| Parties | STATE v. SASSO. (Criminal), New Jersey |
| Court | New Jersey County Court |
Horace K. Roberson, Bayonne, Prosecutor of the Pleas, attorney for the State (William A. O'Brien, Jersey City, Asst. Prosecutor of the Pleas, of counsel).
Raymond Chasan, Jersey City, attorney for defendant.
DREWEN, J.C.C.
This indictment is based on R.S. 2:124--11, N.J.S.A., reenacted as N.J.S. 2A:102--5, N.J.S.A. For all present purposes the essential import of the statute is unchanged. All allegations are clearly within the terms of the existing act and the erroneous recital of the former section in no wise relates to matter of substance, it being therefore a proper subject of amendment. In its present form the statute reads:
'Any employee, agent, consignee, factor, bailee, lodger or tenant who embezzles or, with intent to defraud, takes money or receives, retains or appropriates to his own use or the use of another, any property or the proceeds of the sale of the same, or any part thereof, belonging to his employer, principal, consignor, bailor or landlord, is guilty of a misdemeanor.'
The indictment charges that defendant, at the time and place stated 'being the agent of S & G, a partnership consisting of James Gerolamo and Dominick Sasso, and as such agent intrusted with the collection of moneys due to the said partnership, did collect from one Arthur Wisnienski, the sum of Two Thousand and Thirty-six Dollars in money due from the said Arthur Wisnienski to the said partnership, and did then and there fraudulently take and convert the said Two Thousand and Thirty-six Dollars to his own use, with intent upon the part of him, the said Dominick Sasso, to defraud the said S & G and James Gerolamo of their respective interest therein.'
I am assuming, as do counsel in the argument, that defendant and the partnership member of the same name, though it does not explicitly so appear, are identical persons. The pith of the contention for dismissal is that a partner cannot in law embezzle the partnership moneys. The indictment does not in any way distinguish the partnership alleged from one in the general category nor from one in which all partners are equal, and the familiar common law principle that rules such partnerships is said to require the dismissal. Thus it is urged, in effect, that embezzlement is precluded by the legal theory according to which each partner owns all the partnership property, each being correspondingly liable for all partnership debts and obligations; and further, that in such a partnership the equality of the partners prevents the disparity of status necessary to the relation of principal and agent as between one partner and another, as well as between any of the partners and the partnership itself. In support of these contentions my notice is directed to encyclopedic texts. 18 Am.Jur. 588, sec. 31; 20 C.J. 445, sec. 35; 29...
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People v. Clayton, 84SA530
...partnership act and Nebraska embezzlement statute allowed partner to be charged with theft of partnership property); State v. Sasso, 20 N.J.Super. 158, 89 A.2d 489 (1952) (New Jersey statute made it a misdemeanor for agent to take property or "any part thereof" belonging to principal); Peop......
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State v. Sylvester
...30 Cal.App.3d 458, 106 Cal.Rptr. 519, 522-26 (1973). See also State v. Siers, 197 Neb. 51, 248 N.W.2d 1, 6 (1976); State v. Sasso, 20 N.J.Super. 158, 89 A.2d 489, 490 (1952). In Sobiek, the embezzlement statute was not expressly applicable to partners. However, under the statute, a "person ......
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People v. Zinke
...38 L.Ed.2d 104; and People v. Mellor, 161 Cal.App.3d 32, 207 Cal.Rptr. 383 [Ct. of App., 4th Dist., 1984]] and New Jersey [State v. Sasso, 20 N.J.Super. 158, 89 A.2d 489 [1950]]; see 82 A.L.R.3d 822, The court holds, however, that the common law rule in virtue of which a partner cannot be f......
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State v. Birch
...under which partners own all partnership property as joint tenants. RCW 25.04.210 is therefore inapplicable. Contra, State v. Sasso, 20 N.J.Super. 158, 89 A.2d 489 (1952) (distinguishable on statutory language). The State contends RCW 25.04.250 imposes limitations upon partners' use of part......