Burnett v. State

• Decision Date: 07 November 1898
• Citation: 41 A. 719,62 N.J.L. 510
• Parties: BURNETT v. STATE.
• Court: New Jersey Supreme Court

41 A. 719

62 N.J.L. 510

BURNETT

v. STATE.

Supreme Court of New Jersey.

Nov. 7, 1898.

(Syllabus by the Court.)

Error to court of quarter sessions, Essex county; Fort Judge.

John M. Burnett was convicted of embezzlement as bailee, and brings error. Reversed.

Argued June term, 1898, before MAGIE, C. J., and DIXON, LUDLOW, and COLLINS, JJ.

Frank Bradner, for plaintiff in error.

Louis Hood, Assistant Prosecutor of the Pleas, for the State.

COLLINS, J. By the indictment in the record before us it was presented that the defendant, "being the bailee, agent and servant of Margaretta C. Campfleld, and as such being intrusted by her with the care of certain valuable property of the said Margaretta C. Campfleld, to wit money of the value of thirteen hundred dollars, did fraudulently and unlawfully take and convert the same to his own use, contrary to the form of the statute in such case made and provided." The statute intended is the supplement of March 10, 1893, to the crimes act (1 Gen. St. p. 1100, pl. 272). Burnett v. State, 60 N. J. Law, 255, 37 Atl. 622. By the bills of exceptions it appears that the proof at the trial was that the defendant was intrusted by Mrs. Campfleld, not with $1,300 of her money, but with checks for $3,000 drawn to his order upon the bank account of her husband. Thus, there was fatal variance between the proof and the allegation. At the close of the state's case the defendant's counsel moved for the direction of an acquittal, which motion was denied. We do not feel at liberty to consider the exception sealed upon such denial. I am not indeed, prepared to approve the dictum in Bindernagle v. State, 60 N. J. Law, 307. 37 Atl. 619, to the effect that error can never be assigned upon the refusal of a court, upon the trial of an indictment, to direct an acquittal. Where the "entire record of the proceedings had upon the trial" is certified under the act of 1894 (1 Gen. St. p. 1154, pi. 170), the right of the court of review to pass upon such refusal, even if only as a "denial of a matter of discretion," would seem clear. That statute was not invoked on this writ of error, but independently thereof I would not say that a strict exception is never permissible. The practice in that regard has not been settled in this state, and varies in other jurisdictions. In Apgar v. Woolston, 43 N. J. Law, 57, 69, Mr. Justice Depue points out that if the public prosecutor will not, with due diligence, move the trial of an indictment, the court will, on motion of the defendant, set a day for trial, and at that time will order a jury to be called and sworn, and, if then the prosecutor does not appear and proceed to trial, will direct an acquittal for want of evidence. It would seem that such a power would imply a duty to exercise it, and a right to review in case of refusal. The same reason that compels a direction of acquittal where the state refuses to offer any proof applies where the proof offered is insufficient to warrant conviction. It has been argued with much learning that the power at the trial to direct an acquittal is advisory only (People v. Harris, 1 Edm. Sel. Cas. 453); but it does not follow that refusal to exercise even such a power in a proper case is not open to review. The subject is ably discussed by Chief Judge Church, and the appellate jurisdiction sustained by the New York court of appeals, in the case of People v. Bennett, 49 N. Y. 137. For the result there reached there is abundant precedent elsewhere. 6 Enc. PI & Prac. p. 690. But in the case in hand the det'endant after the denial of his motion to direct an acquittal, proceeded to offer evidence, and failed to renew his motion at the close of the whole case. The effect of such a course in a criminal action has not...