Reynolds v. State

• Decision Date: 12 November 1900
• Citation: 65 N.J.L 424,47 A. 644
• Parties: REYNOLDS v. STATE.
• Court: New Jersey Supreme Court

47 A. 644

65 N.J.L 424

REYNOLDS

v. STATE.

Supreme Court of New Jersey.

Nov. 12, 1900.

(Syllabus by the Court)

Error to court of quarter sessions, Monmouth county.

William A. Reynolds was convicted of embezzlement, and brings error. Affirmed.

Argued June term, 1900, before the CHIEF JUSTICE, and GUMMERE, LUDLOW, and FORT, JJ.

Aaron E. Johnson, for plaintiff in error.

John E. Foster, for defendant in error.

FORT, J. The first assignment of error in this case raises the question of the sufficiency of the indictment The indictment is drawn under section 184 of the crimes act. Laws 1898 (Revision) p. 844. It appears to conform to the exact requirement of the statute, and to charge the crime in the language of the statute. The numerous embezzlements alleged are all stated to have occurred within a period of six months, and are hence within the strict letter of section 47 of the criminal procedure act Id. p. 882.

Before the defendant pleaded to the indictment, a motion was made to quash on five grounds. The first two were: (1) Because the moneys were alleged to have been embezzled from a body corporate of the state of Rhode Island; and (2) because, such being the fact, there is no allegation in the indictment that said corporation had complied with the laws of this state to entitle it to do business in this state. These objections are without substance. Our statute simply says that any person "intrusted with the care or collection of any money who shall fraudulently take or convert the same or any part thereof to his own use, or to the use of any other person or persons whatsoever, except the rightful owner thereof, shall be guilty of a misdemeanor." The fact that by our corporation act foreign corporations are required to do certain things to be authorized to do business in this state, and are liable to a penalty if they do not do so, is of no consequence, as between the state and the defendant, in an indictment The crime is against the state, not the owner of the property. Any person who embezzles the property of any other person is guilty under our statute. A "person" includes a "corporation." Crimes Act, Laws 1898 (Revision) p. 854, § 220; Criminal Procedure Act, Laws 1898 (Revision) p. 929, § 178. If it were necessary for the state to prove the fact which it is contended should be alleged in the indictment, still that would not affect the sufficiency of the indictment It is a crime, under our statutes, to embezzle within this state from either a resident or a nonresident individual or corporation. On the trial of an indictment for the embezzlement of money coming into the possession of the defendant as the agent of a foreign corporation, the supreme court of Ohio have held that it is not a defense that the corporation had failed to file with the secretary of state the statement required by the Revised Statutes to authorize it to do business in that state. Their corporation act and statute defining embezzlement are both very similar to out own, and which we are construing here. State v. Pohlmeyer (Ohio Sup.) 52 N. E. 1027.

The third objection to the indictment, viz. that it was necessary to allege in the indictment that a demand had been made for the money alleged to have been embezzled, is also without force. Demand may become material, in some cases, to establish fraudulent conversion, but not in all; but it need not be averred in the indictment in any case.

Nor is it necessary to allege in the indictment, as the fourth objection contends, that the defendant did take or convert the money to his own use with intent to defraud. The statute does not charge that the act must be done with intent to defraud, as was the case in the statute which was construed in State v. Lyon, 45 N. J. Law, 272, which is relied upon to sustain this objection. Where an act is made a crime by statute, and the statute does not make it an ingredient of the crime that the defendant shall have had a certain intent, no allegation that he had such an intent is necessary in the indictment. This principle is stated very clearly by the court of errors and appeals in Halsted v. State, 41 N. J. Law, 552. Under the statute upon which the indictment now questioned is founded the crime consists in fraudulently taking or converting to the defendant's own use, and ft is only necessary to allege in the indictment that he did so take or convert it. How a person can fraudulently take or convert money of another person to his own use without having an intent to do so seems difficult to understand. The one involves the other in its mere statement. You can imagine a case where the intent to take money of another, and convert it to your own use, might not be fraudulent; but it would be difficult to imagine a case where the taking or converting was fraudulent, where intent to defraud did not exist. To frame an indictment as the plaintiff in error contends would require the pleader to allege that the defendant did "fraudulently convert money of the American Wringer Company to his own use with intent to defraud." If there is any difference, legally, between fraudulently converting and converting with intent to defraud, it is not discernible; but the complete answer to this is that the crime is charged in the indictment in the language of the statute. A careful examination of the crimes act as revised in 1808, in so far as it relates to frauds and embezzlements, will show that the expressions "fraudulent" and "with intent to defraud" are used interchangeably to define crime, and have the same meaning. See sections 167 and 172 to 184, inclusive, on this point (Laws 1898, pp. 840-842).

The fifth reason for quashing was because the indictment was illegal in form, is simply general, and has been already covered by the disposition made of the other questions. The motion to quash was rightly denied.

There were also a number of assignments of error to the rulings of the court on the admission of evidence at the trial, as also on the refusal of the court to direct an acquittal of the defendant at the close of the state's case. The first, second, third, fourth, ninth, tenth, and eleventh assignments of error have been covered and disposed of by what the court has already said upon the questions raised on the motion to quash the indictment. The fifth, sixth,...