State v. Silverman

• Decision Date: 15 November 1924
• Citation: 126 A. 618
• Parties: STATE v. SILVERMAN.
• Court: New Jersey Supreme Court

126 A. 618

STATE

v. SILVERMAN.

Supreme Court of New Jersey.

Nov. 15, 1924.

Error to Court of Quarter Sessions, Essex County.

Max Silverman was convicted of embezzlement, and he brings error. Reversed, and venire de novo awarded.

Argued November term, 1923, before KALISCH and KATZENBACH, JJ.

Braelow & Tepper, of Newark, for plaintiff in error.

J. O. Bigelow, of Newark, for the State.

KALISCH, J. The plaintiff in error was convicted of the crime of embezzlement in the Essex county quarter sessions, and, judgment having been pronounced upon him on such conviction, he brings the record and proceedings before this court for review, on writ of error, by assignments of errors founded upon bills of exceptions, and also under the 136th section of the Criminal Procedure Act, 2 Comp. St. 1910, p. 1863.

The indictment charged, the defendant below, in a single count, that he did on the 15th day of December, 1921, being the bailee, agent and servant of William Gulka, and as such being intrusted by him with the care of certain moneys of the said William Gulka, to wit, money of the value of $1,000, did then and there fraudulently and unlawfully take and convert the same to his own use, contrary, etc.

The indictment was based on section 184 of the Crimes Act, 2 C. S. page 1799. The section relates to conversion of property by consignee, factor, bailee, agent or servant. As the legal status of each of the aforementioned, by reason of the nature of his employment, differs, the legal principle, governing the duty and liability arising out of such relationship, also differs. If it was uncertain in what fiduciary relation the accused committed the offense, then correct pleading required that each relationship should be made the subject of a separate count. Although no objection was made against this fault in the indictment, and therefore cannot be availed of by the plaintiff in error, it was deemed advisable to take notice of this grave fault in the pleading, so as to prevent a recurrence of it in the future, which loose practice, if properly taken advantage of, might lead to a miscarriage of justice.

The facts, as developed by the testimony, are these: On December 15, 1921, William Gulka, the complaining witness, made an agreement with the accused, whereby the latter undertook to procure bail for one George Toos in the sum of $3,000 upon the payment of a fee of $210. Gulka gave the defendant $1,000, from which sum the latter deducted his fee of $210, with the distinct understanding between them that the balance of $790 was to be retained by the latter, as collateral security, until two criminal charges made against Toos, one in Pennsylvania and the other in Hackensack in this state, were disposed of. It further appeared that a week later the defendant procured ths National Surety Company to bail Toos on the charge made against him in Hackensack. In the month of February of the following year, Toos having been found guilty of the charge laid against him in Hackensack, judgment was pronounced and the bail was discharged. Gulka thereupon made a demand upon the defendant for the return of the $790, when the latter insisted that Gulka must produce satisfactory evidence of the cancellation of the bail liability in the state of Pennsylvania and in Hackensack. The complaining witness claimed that he procured the cancellations as required of him and demanded the return of the $790 held by defendant as collateral security, which demand was refused. The defendant denied that both cancellations had been delivered to him, and that he had repeatedly offered to return the money to Gulka, who refused to accept the same. This factual question was in dispute and was for the jury.

The first point made in the brief on behalf of the plaintiff in error is that the trial judge erroneously charged the jury as follows:

"If either counsel for the state or counsel for the defense in their summation have referred to matters extraneous to the issue or have drawn inferences which are not justified in the case, of course, gentlemen, you must and should disregard counsel's summation."

The contention is that this instruction deprived the defendant of his constitutional right to have the assistance of counsel in his defense. There is no merit in this contention, for it nowhere appears in the record that the plaintiff in error was deprived of the assistance of counsel, but on the contrary the record shows that the defendant was represented by counsel throughout the trial of the case.

But it is said that if the instruction is read in its ordinary sense, it was equivalent to a direction to the jury to ignore all of counsel's summing up, both on behalf of the state and of the defendant, for the fault of either one. It seems to us that while this portion of the charge might have been more explicit, nevertheless we think that counsel's contention, that it was misleading, in that it had a tendency to impress the jury that if either counsel of the state or counsel of the defendant had referred to and summed up on matters which were foreign to the issue and facts of the case, the jury should disregard the summations of both counsel, is not only not warranted, but is an obvious distortion of the ordinary sense conveyed by the language used.

The second ground relied on for reversal and argued in the brief of counsel for the plaintiff in error relates to the rulings of the trial judge in excluding...