State v. Daly
| Decision Date | 29 June 1962 |
| Docket Number | No. A--137,A--137 |
| Citation | 38 N.J. 1,182 A.2d 861 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Robert R. DALY, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Arthur S. Meredith, County Pros. in and for the County of Somerset, for plaintiff-respondent (Michael R. Imbriani, Asst. County Pros., on the brief.)
Robert R. Daly, Newark, defendant-appellant, pro se. (Sam Weiss, Newark, on the brief).
The opinion of the court was delivered by
Defendant, Robert R. Daly, a member of the bar of this State, was convicted of embezzlement in the Somerset County Court following a non-jury trial. We certified for determination in this court his ensuing appeal to the Appellate Division.
The indictment charged that 'on the 21st day of December, 1959 and on divers days and dates subsequent thereto, * * * (Daly) being the agent and bailee of Komline, Sanderson Engineering Corp., a corporation of the State of New Jersey, unlawfully did embezzle * * * and appropriate to his own use money to the amount of $20,000 belonging to the said Komline-Sanderson Engineering Corp., * * * with intent to defraud said corporation thereof, contrary to the provisions of N.J.S. 2A:102--5 (N.J.S.A.), * * *.'
The proof showed that for some time prior to December 21, 1959, Daly had acted as attorney for Komline-Sanderson and on that date was handling certain unfinished matters for it. On December 21, 1959 Daly came to the office of Komline-Sanderson at Peapack-Gladstone, New Jersey, and conferred there with Thomas R. Komline, President of the company. The purpose of the meeting, according to Komline, was to complete the final details respecting the proposed purchase of certain property, in which Daly was to act for the company. At that time, Komline delivered a Komline-Sanderson check for $20,000 drawn to the order of 'Mr. Robert R. Daly, Attorney,' which he asserts and Daly denies was to be used to buy the property. On receiving the check, Daly immediately prepared, signed and gave to Komline the following receipt:
'Komline-Sanderson Engineering Corporation, Peapack, N.J.
This will acknowledge receipt of $20,000 to be used by me as your attorney to purchase in your name the real estate in Peapack, N.J., known as the station area including the station building and the dwelling thereon.
I shall deliver to you on or before April 15, 1960, a deed to said premises free and clear of all encumbrance approved both by the Board of Public Utility Commissioners and the Small Business Administration.
If the acquisition is to cost more than $20,000, I shall notify you in writing of the price and you shall have ten days in which to agree to the higher price.
I shall deliver the deed on or before April 15, 1960, and if I am unsuccessful in acquiring the property by that date I will return the $20,000 forthwith.
Dated December 21, 1959.
Robert R. Daly.'
Three days before receiving the $20,000 Komline-Sanderson check, Daly had drawn a check for $14,000 to the order of Crawford Manufacturing Company on the Robert R. Daly, Special Account, in the National Newark and Essex Banking Company in Newark, New Jersey. At that time his balance there was $59.29. On leaving the Komline-Sanderson office, Daly went to its bank, had the $20,000 check certified and immediately deposited it in his 'Special Account' in Newark.
On the same day, Daly wrote a check on that account for $1,000 to Fidelity Union Trust Co., which was certified; two days later he drew another for $1,000 to himself. The following day, December 22, the $14,000 check cleared through the account. Obviously, if the $20,000 deposit had not been made, these three checks would not have been honored. What happened to the balance of $4,000 was not shown.
In January 1960 Komline learned there was no need for haste in seeking the railroad property. So he telephoned Daly and requested the return of the $20,000, saying that when the negotiations were complete, proper arrangements would be made for deposit money or for actual closing of the transaction. Daly said he would come to the plant in a few days. During February he came to see Komline. The date of the visit is in dispute, Daly fixing it as February 3; Komline as February 23. At that conference, according to Komline, Daly said he had invested the money and would return it by April 15. He declined to specify the nature of the investment. Komline testified that after some talk about criminal action, the meeting terminated rather abruptly when he agreed to think the matter over and let Daly know what course of action would be taken. Thereafter he decided, in order to avoid publicity, to take no action until April 15. Around the 15th or shortly thereafter, when the money had not been returned, he told Daly the company's fiscal year ended April 30 and that the matter had to be cleaned up. Daly promised to come to the plant or to send a check. The promise not having been kept, another telephone call was made by Komline and Daly agreed to send the check. Komline's testimony is that down to this time Daly had not questioned the fact of his default in any way.
On Saturday, April 30, a letter from Daly, dated April 29, was received by the chief accountant of Komline-Sanderson. Attached to it was a check for $20,000 drawn on Daly's special account. The letter said, however, that the check was to be held until after a meeting scheduled for the following Tuesday when Daly and Komline would evaluate Daly's legal services to date and estimate the value of those services for the future. Since this qualification on delivery of the check was not in accord with their telephone conversation, Komline ordered the check deposited. The deposit was made on Monday but the check was returned for insufficient funds on May 6, 1960. The balance in Daly's special account on that date was $1.40. Komline then demanded that Daly come to the office and 'clean the matter up.' Daly appeared on May 11 and said he would return the $20,000 when his fees were paid. A list of fees owing was then prepared. Komline and the executive vice-president of the company rejected it as excessive. Some time thereafter the embezzlement complaint was filed.
Daly's defense to the indictment took the following course. He testified that prior to December 21, 1959, he and Komline had been discussing matters in which he was representing the company and certain other projects which he was to pursue in the future. They agreed to meet and did meet on December 21 to reduce their understandings to writing. One such matter was the acquisition of the railroad property which Daly was to undertake for the company. Daly admits that on that day Komline had the accounting department prepare the check for $20,000 to Daly's order. Thereupon, the paper set forth above, acknowledging receipt thereof to be used 'as your attorney to purchase in your name' the railroad property and to return the money 'forthwith' if the mission was...
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