State v. Bobbins, A--70

• Decision Date: 23 May 1955
• Docket Number: No. A--70,A--70
• Citation: 114 A.2d 474,35 N.J.Super. 494
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Samuel BOBBINS, Defendant-Appellant . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 494

35 N.J.Super. 494

114 A.2d 474

STATE of New Jersey, Plaintiff-Respondent, v. Samuel BOBBINS, Defendant-Appellant

No. A--70.

Superior Court of New Jersey Appellate Division.

Argued May 9, 1955.

Decided May 23, 1955.

Joseph Tomaselli, Camden, argued the cause for appellant (Malandra & Tomaselli, Camden, attorneys).

David R. Brone, First Asst. Prosecutor, Atlantic City, argued the cause for respondent (Lewis P. Scott, Atlantic County Prosecutor, Atlantic City, attorney).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Defendant was convicted of embezzlement under an indictment which charged that,

'on divers days between the 1st day of December, 1951, and the 5th day of May, 1953, being the agent of Mayfair Apartments, Inc., a corporation of the State of New Jersey, his principal, and as such agent entrusted with the care and collection of rent moneys and payments due to such corporation, and having as agent received, collected and obtained from tenants of said corporation the sum of $88,785.44, the property of the said Mayfair Apartments, Inc. * * * (he) did wilfully, unlawfully and feloniously retain and appropriate to his own use the said sum of money aforesaid, knowing the same to belong to the said Mayfair Apartments, Inc. * * * with intent to defraud the said Mayfair Apartments, Inc. * * * contrary to the provisions of N.J.S. 2A:102--5 * * *.'

It is argued that the statute on which the indictment is based is void as vague and indefinite and consequently repugnant to the Fourteenth Amendment of the Federal Constitution. More specifically it is claimed that a penal statute creating a new offense must be explicit in its description of the conduct proscribed and that due process is violated where its terms are so vague that men of common intelligence must guess at the meaning. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

N.J.S. 2A:102--5 became effective in its revised form on January 1, 1952 (L.1951, c. 344), N.J.S.A. It provides:

'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 suggestion is that use of the word 'embezzles,' which did not signify a crime at common law, without specific definition as to what is being made criminal, renders it necessary for the public to speculate about the nature and elements of the crime. Further it is said that in the context 'embezzles' stands alone disconnected from the remainder of the sentence, so that no answer is provided for such questions as: 'Embezzles what?' and 'Embezzles from whom?'

We find no legal merit in these criticisms. Although the construction and perhaps the punctuation of the sentence could be improved, the implication is plain so far as the present case is concerned. An employee, agent, consignee, factor, bailee, lodger or tenant is guilty of embezzlement if (a) he embezzles money belonging to his employer, principal, consignor, bailor or landlord, or (b) if with intent to defraud he takes money belonging to his employer, principal, consignor, bailor or landlord that has come into his possession lawfully.

Moreover the connotation of the word 'embezzles' is obvious. It has had a settled significance in the law from the time of the first judicial declaration that conversion or misappropriation of money or property of an employer or principal by a servant or agent which had been entrusted to him by another, did not constitute common-law larceny. Since then embezzlement has meant generally the intentional and fraudulent appropriation of the property or money of another by a person into whose hands it had lawfully come or to whom it had been entrusted. State v. Carr, 118 N.J.L. 233, 192 A. 36 (E. & A.1937); State v. Woodward, 99 N.J.L. 49, 122 A. 609 (Sup.Ct.1923); State v. Egan, 84 N.J.L. 701, 87 A. 455 (E. & A.1913); 29 C.J.S., Embezzlement, § 1; 2 Wharton, Criminal Law (12th ed. 1932), p. 1568, § 1258; 2 Burdick, The Law of Crime (1946), § 562; Webster's New International Dictionary. The definition was so well known that in 1529 the first statute known to deal with such breach of trust made it a felony for any servant to 'embesill' his master's caskets, jewels, money, goods, or chattels or any part thereof, above the value of forty shillings. 21 Henry VIII, ch. 7; 3 Coke's Institutes, p. 105.

It has been said that the single word 'embezzle' in an indictment contains within itself the charge that the defendant fraudulently appropriated the money or property to his own use. People v. Catcott, 393 Ill. 582, 67 N.E.2d 175 (Sup.Ct.1946); State v. Hudson, 9o W.Va. 435, 117 S.E. 122 (Sup.Ct.App.1923); 2 Burdick, supra, § 585.

Next it is claimed that the indictment fails to charge this statutory crime. Again we find lack of substance.

Defendant points to the allegation of the indictment that he 'received, collected and obtained' from the tenants of Mayfair Apartments, Inc., 'the sum of $88,785.44' and 'did wilfully, unlawfully and feloniously retain and appropriate' it to his own use. And he says that since the statute uses the word 'receive' only in connection with 'property' which, in the context, must be distinguished from money, it is not made a crime to receive money and appropriate it to one's own use. But in the indictment 'received' is a factual statement intended to explain how the money came into Bobbins' hands. In other words, the State alleged that he was the agent of Mayfair Apartments, Inc., for the purpose of collecting rents from its tenants, that because of the fiduciary relationship he received (became entrusted with, came into possession of) the money in question and that he wilfully and unlawfully appropriated it to his own use. This asserts a classical case of embezzlement.

Reversal is sought also because of the refusal to grant the motion for judgment of acquittal and because the verdict of guilty is said to be contrary to the weight of the evidence. Consideration of these contentions requires a statement of the facts.

Bobbins held some options on an assembled parcel of land in Atlantic City which was adaptable to apartment house construction. One Kaufman had an F.H.A. mortgage commitment for such a structure. However, the two men were unsuccessful in their efforts to promote the financing of the project. Ultimately and with their assistance, Anthony P. Miller acquired the commitment. This involved a payment of $13,000 so far as Bobbins' interest was concerned. He received about $4,000 personally and the remaining $9,000 was paid to certain of his creditors. In addition, an agreement was made that he would be appointed rental manager of the apartment house project at a commission of 5% Of the rentals.

Miller then organized Mayfair Apartments, Inc., of which he became the president and principal stockholder. Bobbins was appointed rental agent by written contract signed by Miller as president. It was for a term of two years but had been renewed until December 31, 1953. The 5% Commission was provided for and the rents upon collection were to be deposited in a special Mayfair bank account.

In October and November 1952 there was not enough money in the rental account to meet operating expenses and Miller had to advance $12,000 to prevent the corporation from becoming in default. On inquiry, Bobbins gave as the reason that a number of the tenants were in the South on vacation and that he would collect the delinquent rents when they returned in March and April. In March the deposits did not increase and the auditors, who apparently were engaged in the annual audit for 1952, informed Miller of the discovery of a $45,000 shortage in the rental account. He wrote Bobbins advising him of the serious nature of the matter and that he would have to notify the bonding company. Bobbins replied by letter reiterating the earlier statement that a large percentage of the tenants were summer residents who had not been occupying the apartments in the cold weather but who might be expected to return after March 15. He enclosed also a copy of a form letter which he said was being sent to these tenants who were in default in their rent.

The audit continued and ultimately revealed a total shortage of $100,244.59. This sum, less 5% Commission, left a deficit of $88,785.44, the amount charged in the indictment to have been embezzled. Bobbins admitted the shortage and that he had received rents representing that amount plus his 5% Commission, and had used the money for his own purposes. He was discharged on May 5, 1952.

The defense was that the $88,785.44 represented a form of loan and not...