Burnett v. State

• Decision Date: 08 June 1897
• Citation: 37 A. 622,60 N.J.L. 255
• Parties: BURNETT v. STATE.
• Court: New Jersey Supreme Court

37 A. 622

60 N.J.L. 255

BURNETT

v. STATE.

Supreme Court of New Jersey.

June 8, 1897.

(Syllabus by the Court.)

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

John M. Burnett was convicted under an Indictment charging him with fraudulently taking and converting to his own use certain money which was intrusted to him as agent, bailee, and servant, and brings error. Reversed.

Argued February term, 1897, before MAGIE, C. J., and OEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

F. Bradner, for plaintiff in error.

L. Hood, for the State.

MAGIE, C. J. It is first contended that the plaintiff in error received manifest wrong by reason of the refusal of the trial court to continue the cause when moved for trial by the prosecutor. The application for continuance was made upon the ground of the illness of plaintiff in error. This objection cannot be considered, for it does not appear that the entire proceedings at the trial are before us, so that we can review them under the act of 1894 (1 Gen. St. p. 1154), and the ruling of the court thereon is not otherwise reviewable.

In the brief of the prosecutor the indictment is said to have been drawn under section 296 of the crimes act (1 Gen. St. p. 1104). That section, however, seems to cover the embezzlement only of personal property other than money. But the amendment to the crimes act approved March 10, 1893 (1 Gen. St. p. 1100), supports the indictment; for it provides, among other things, that if any agent or servant intrusted with the care of any money shall fraudulently take and convert the same, or any part thereof, to his own use, he shall be deemed guilty of a misdemeanor. In order to convict a defendant upon such an indictment, it is obvious that the fraudulent conversion of money intrusted to his care must be made out. The bill of exceptions discloses that plaintiff in error had received from Mrs. Campfield $3,000, to be applied to the purchase of some real estate, the title to which was to be taken in the name of a person nominated by Mrs. Campfield. It further appears that plaintiff in error had paid out upon the price of the real estate $1,700, and $1,300 remained unpaid, and that Mrs. Campfield had asked him for the money, but that he had not paid it to her. On the subject of the necessary proof the learned presiding judge charged as follows: "Now, if, after waiting fourteen or sixteen months, the sale had not gone through, if you think that the complaining witness was...