On error to the Ocean County Court of Quarter Sessions.
For the plaintiffs in error, Percy Camp and Ira F. Smith (Joseph Sterling and John Warren, of counsel).
For the state, Leo Robbins, prosecutor of the Pleas, and Howard Ewart, special assistant to the prosecutor of the Pleas.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The writ of error in this cause brings up for review the conviction of the two defendants on a charge of embezzlement and larceny of $81,320.22 in value of bonds and securities of the estate of James D. Halton. This conviction followed the trial on the indictment which had been quashed by order of the Ocean County Court of Quarter Sessions and which order was set aside by this court. State v. Then, 114 N.J.L. 413; 177 A. 87. Though the indictment contained six counts defendants were convicted on the first count only. This count charged as follows:
"That, on the tenth day of October in the year of our Lord one thousand nine hundred and thirty, the Toms River Trust Company, a banking corporation of the State of New Jersey, was the Administrator Pendente Lite of the Estate of James D. Halton, deceased, and that Anthony M. Then * * * was President and a Director, and Benjamin W. Sangor
* * * was a director and Chairman of the Board of Directors of said Toms River Trust Company * * * and that said Toms River Trust Company * * * became possessed of the goods and chattels, rights and credits, moneys and valuable securities which were of James D. Halton, deceased, and that Anthony M. Then, as President of said Toms River Trust Company * * * and Benjamin W. Sangor, director and chairman of the Board of Directors of said Toms River Trust Company * * * entrusted with the care and keeping of the goods and chattels * * * in the possession, care and keeping of the Toms River Trust Company * * * did, on the tenth day of October, in the year of our Lord, one thousand nine hundred and thirty, at the Township of Dover, in the County of Ocean aforesaid, and within the jurisdiction of this court, willfully, fraudulently and feloniously embezzled and convert, take and apply to their own use and benefit, the goods and chattels, money and valuable securities of the said Toms River Trust Company [here followed a list of the securities] all of the value of Eighty-one Thousand Three Hundred Twenty Dollars and Twenty-Two Cents, lawful money of the United States of America, the property of said Toms River Trust Company * * * contrary to the form of the statute in such case made and provided, and against the peace of this State, the government and dignity of the same."
The record is voluminous. The trial itself consumed a period of three weeks. Anticipating this fact, the trial judge ordered the drawing of a jury under the provisions of chapter 287, Pamph. L. 1935.
It appears from the record that one James D. Halton died on May 7th, 1930. On August 21st, 1930, the Toms River Trust Company was appointed administrator pendente lite of his estate by order of the Ocean County Orphans Court. Defendant Then was president and defendant Sangor was chairman of the board of directors of that bank. On September 10th, 1930, ancillary letters were issued to the Toms River Trust Company by the register of wills of Philadelphia county, Pennsylvania. It was open to the jury to find that on or about the same day (September 10th, 1930) Then procured the securities of the estate of Halton from the Girard
Trust Company in Philadelphia, by virtue of what was alleged to be a false resolution of the board of directors of the Toms River Trust Company by the terms of which access to the safe deposit box in the Girard Trust Company containing the securities, was given to Then.
The securities in question are next found on deposit with J.F. Frounstine & Company, of New York City, in the "B. W. Sangor Bond Account." This bond account was first opened on October 30th, 1930. There is a conflict of testimony as to just how Sangor got those bonds. At the present trial, Then testified that he personally sold and delivered the securities to Sangor in pursuance of an alleged agreement between the two parties whereby the Toms River Trust Company was to and did in fact receive in return for these securities some $75,000 in par value bonds of the Sangor Hotel Corporation. Both Then and Sangor were also officers of this corporation. It must be noted that this alleged agreement, together with an ad interim receipt which was to have been given for the securities, was supposed to have been lost and defendants were permitted to give parol evidence in eliciting the contents thereof. At all events none of the other members of the board of directors ever knew of these transactions. Then also testified in these proceedings that at the time of receiving the securities he noticed that there were certain "illegals," i.e., securities not classified as legal investments under our laws, among them. He therefore appeared in open court before Judge Gallagher in September of 1930, to make a verbal application for instructions with regard to these "illegals" and was told to dispose of them. This testimony is disputed but at any event some two and one-half months after Sangor had borrowed against the securities traced to his account with J.F. Frounstine & Company, on January 31st, 1931, to be exact, there was filed in the surrogate's office of Ocean county an order made by Judge Gallagher in the Orphans Court, dated January 30th, 1931, purporting to authorize the disposition of the "illegals" for the acquisition of "legal investments."
At the hearing on exceptions to the accounting before Judge Jayne, sitting as a master in the Orphans Court in
1932, Then gave testimony to the effect that he did not sell the bonds, nor deliver them to Sangor, and that he did not know how they got out of the bank and into Sangor's possession.
Sangor, as hereinbefore indicated, borrowed $25,000 on these bonds. The majority of the balance was sold for his account and some $7,000 in par value was turned back to the administrator bank. The securities allegedly given in return for the Halton securities brought only $30 on public sale. On the basis of these facts, as aforesaid, and those hereinafter stated, the jury returned a verdict of guilty. The court fined each defendant $1,000 and sentenced each to imprisonment for a term of not less than two nor more than three years. The propriety of that conviction and judgment is here challenged.
First: Defendants' first contention is that there should have been an acquittal either at the end of the state's case or at the end of the entire case on the ground that the state failed to prove a conversion, or, if there was a conversion, that it was fraudulent, or with felonious intent.
That the securities in question were converted is fully supported by the proofs.
It is, of course, elementary that proof of fraudulent intent is an essential element of the crime charged. It is also, however, well settled that this intent is entirely a question of fact for the jury -- it may be inferred from overt acts; from proof of attending circumstances. State v. Malloy; State v. Adams, 34 N.J.L. 410. We think there is ample evidence to support the finding of the jury as to fraudulent intention. It was open to the jury to find that the defendants concealed all knowledge of the transaction from the board of directors of the trust company; that Sangor pledged the securities and borrowed $25,000 for his own use against them; that Then made false entries in the cash book or ledger kept for the Halton estate; and that Then gave false testimony either at this trial or before ...