State v. Ajamian

• Decision Date: 07 September 1950
• Docket Number: No. A--286,A--286
• Citation: 75 A.2d 516,9 N.J.Super. 143
• Parties: STATE v. AJAMIAN.
• Court: New Jersey Superior Court — Appellate Division

Page 143

9 N.J.Super. 143

75 A.2d 516

STATE v. AJAMIAN.

No. A--286.

Superior Court of New Jersey Appellate Division.

Argued Aug. 14, 1950.

Decided Sept. 7, 1950.

George R. Sommer, Newark, argued the cause for the appellant.

William A. O'Brien, Jersey City, argued the cause for the respondent (Horace K. Roberson, Hudson County Prosecutor, Jersey City, Attorney).

Before Judges JACOBS, BIGELOW and JAYNE.

The opinion of the court was delivered by

JACOBS, S.J.A.D.

The defendant Harry M. Ajamian appeals from his conviction of embezzlement in the Hudson County Court on the ground that his indictment was bad as duplicitous.

The indictment was returned in 1947 and charged that the defendant, as agent of Isabella Panian, was entrusted with the care of moneys on her behalf and fraudulently took and converted her moneys to his own use in specified amounts on dates between December 9, 1946 and February 28, 1947, the total sum converted being $15,957.83, later amended to $14,679.10. On the day of trial the defendant moved to quash the indictment on the ground, among others which have been abandoned on the appeal, that the individual amounts listed therein should have been set forth in separate counts. The motion was denied, the matter proceeded to trial during which evidence supporting the indictment and the defense was received and, after having been duly charged by the Court, the jury found the defendant guilty. Motions in arrest of judgment, to set aside the verdict of the jury, and for a new trial, were denied and the defendant was sentenced to State Prison for a term of two to three years.

The State contends that the indictment may be viewed as properly charging the single offense of embezzling the aggregate amount stated which, in turn, consisted of the individual smaller amounts enumerated therein. Support for this view may be found in cases in other jurisdictions involving continuing defalcations by an agent resulting, upon disclosure, in a single charge of embezzlement based on the total shortage, Ker v. People, 110 Ill. 627, 646, 51 Am.Rep. 706 (Sup.Ct.1884); State v. Kurth, 105 Mont. 260, 72 P.2d 687 (Sup.Ct.1937) ; 1 Wharton's Criminal Procedure (10th Ed.1918) § 598, p. 780; these cases recognize that an unwarranted burden would be placed upon the State if it were obliged under such circumstances to meet any formal requirement of alleging and establishing the precise dates and amounts of the individual defalcations. Similarly, in our State there have been various legislative enactments designed o preclude the defeat of prosecutions on the basis of attacks relating to the form rather than the substance of the charge of embezzlement. Cf. R.S. 2:188-19, 20, 22, 23, N.J.S.A.; State v. Meeker, 72 N.J.L. 210, 213, 61 A. 381 (E. & A.1905). Included within these enactments was the specific statutory provision, upon which the State relies, that in an indictment for embezzlement 'there may be charged any number of distinct acts of embezzlement' which may have been committed against the same master or employer, cf. State v. Barr, 61 N.J.L. 131, 133, 38 A. 817 (Sup.Ct.1897), within six months from the first to the last of such acts. R.S. 2:188--19, N.J.S.A. It is contended that this statute contemplated the requirement that the acts be set forth in separate counts but we are not inclined to accept this narrow...