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State v. Carr

Decided: October 14, 1936.

STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
JOSEPH H. CARR, PLAINTIFF IN ERROR



On writ of error.

For the defendant in error, Samuel P. Orlando, prosecutor of the Pleas.

For the plaintiff in error, Carl Kisselman and George D. Rothermel.

Before Brogan, Chief Justice, and Justices Case and Perskie.

Brogan

BROGAN, CHIEF JUSTICE. The plaintiff in error, Joseph H. Carr, was convicted of embezzlement as bailee of the Camden Safe Deposit and Trust Company (hereinafter called "the Bank") under section 184 of the Crimes act, in that as such bailee he did willfully, fraudulently and unlawfully take, embezzle and convert moneys of the said Bank to his own use with intent to cheat and defraud.

There were eighteen counts in the indictment all directed to the one unlawful act charged. Six of these counts, which charged plaintiff in error with embezzlement as servant of the Bank or of one Bernhard G. Leuthy, were abandoned by the state at the end of the state's case. The twelve remaining counts charged the plaintiff in error with embezzlement of certain tax certificates, or money representing their value, as bailee or agent of either the said Bank or Bernhard G. Leuthy.

The evidence produced by the State, which must be recited in some detail, tended to show that the Bank was owed considerable money by one J. Edward Fagen, who was conducting the affairs of a real estate corporation known as Marlton Pike Manor. The Bank had also advanced money to Lippincott Company, a corporation. Both companies were developing lands owned by them located in Delaware township, Camden County, New Jersey. A creditors' committee was in charge of the affairs of Mr. Fagen and among the members of that committee were Ephraim Tomlinson, the president of the Bank, and Joseph H. Carr, plaintiff in error. The lands of both these companies were about to be sold in October, 1930, for unpaid taxes for the year 1928 only. It appears that there were unpaid taxes on these lands for the subsequent year, which, under the statute (Tax act, Revision 1918) were

also in default as of July, 1930. Carr, who was a member of the bar of this state, advanced the idea to Tomlinson that it would be for the best interests of the creditors of these two companies if an arrangement might be made to buy in these properties at the tax sale; that it would be advantageous to have the tax sale certificates purchased by friendly interests and would result in considerable saving on the cost of redemption. Carr suggested that a loan be made to Bernhard G. Leuthy, a young lawyer in his office, and Grover C. Chase, a friend, who would purchase the lands at the tax sale which was to be held in a few days. The certificates were to be assigned by the purchasers (who were "straw" men) to the Bank as security for the moneys advanced to purchase the tax titles. The Bank advanced the moneys and Carr purchased the lands in the names of Messrs. Leuthy and Chase. These purchasers each executed a note for $6,000 and delivered same to the Bank.

When the loan was made on the Leuthy and Chase notes, neither of these men had an account with the Bank. The sum advanced was placed in a sundry account and by their drafts it was placed to the credit of Carr, who likewise, at that time had no account with the Bank. At the sale, Carr, by check on the Bank, paid the tax collector for the certificates.

On the date of the purchase of the tax sale certificates, October 25th, 1930, Leuthy and Chase each executed an assignment to the Bank of the tax sale certificates which had been purchased in their respective names. About a month later Carr wrote to Tomlinson, enclosing an itemized list of the tax sale certificates, advising that they had been sent to the register of the county to be recorded and when recorded would be sent to the Bank as collateral. The Bank advanced additional moneys for recording fees and incidental expenses. On December 28th, 1932, Chase withdrew from the transaction and Leuthy signed and delivered to the Bank his note for the total amount of the loan to Chase and himself, including interest, fees and expenses.

It appears that the tax sale certificates never were delivered to the Bank but were returned from the office of the register of ...


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