On error to the Essex County Court of Quarter Sessions.
For the plaintiff in error, Kalisch & Kalisch (Isidor Kalisch, of counsel).
For the defendant in error, William A. Wachenfeld, prosecutor of the Pleas, and Joseph E. Conlon, first assistant.
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The plaintiff in error, hereinafter referred to as the defendant, was convicted on an indictment charging that as agent entrusted with the collection of money, he fraudulently took and converted the same to his own use in the amount of $397.50 the property of one Wilson.
At the trial the evidence, while in sharp dispute for the most part, nevertheless tended to show as a jury question, among other things, the following: That the defendant was a member of the bar of this state, and that Wilson was an old man who had been injured in an automobile accident, and who entered into an agreement with the defendant, whereby the latter was given the exclusive right to take all legal steps to enforce Wilson's claim for damages resulting to him in the accident, and in consideration of the services rendered or to be rendered by the defendant, it was agreed that the defendant should be paid one-half of any sum collected, whether by court action or settlement, Wilson to pay hospitalization and doctors' bills; that defendant procured a settlement of such damages in the sum of $1,445, payment being made by a draft for $325 paid to the hospital and $1,120 by a draft payable to the defendant; that defendant had no bank account, and that the latter draft was delivered by him to William Herda Smith, a Newark lawyer, with the understanding and agreement that Smith would have it cashed immediately; that it was not cashed immediately, but on the contrary, the proceeds of the draft finally entered Smith's personal account at the bank (Smith testifying that he was to deposit it and the money was to be given as and when defendant requested it).
Considerable testimony was taken tending to show, among other things, that from time to time, upon repeated demands made by defendant upon Smith, the defendant received the sum of $295; the evidence further tends to show, although this is in dispute, that further sums were paid by defendant for hospitalization or otherwise in partial discharge of his contract obligation with Wilson, and defendant testified in effect that there remained $288.50 due Wilson, and defendant further testified, and was to a certain extent corroborated, that relying upon his lien for services rendered, he made an offer of $300 to Wilson which the latter refused.
The case comes up on exceptions at the trial and also by specifications of causes for reversal pursuant to section 136 of the Criminal Procedure act.
Many points are argued, but in the view we take of the matter, it becomes necessary to consider only what we deem to be errors in respect to requests to charge, and what was said at the trial by the trial judge in dealing with such requests.
First: Defendant complains that the trial judge after charging the jury: "Has the state proved beyond a reasonable doubt that the defendant as agent for Wilson fraudulently converted to his own use any part of the $397.50 entrusted to him and belonging to him and belonging to Wilson?" thereafter erroneously refused to limit the jury's consideration of the alleged embezzlement to the time as limited by the indictment, when immediately requested so to do.
In this connection the record shows that, after the judge had charged as stated, defendant's counsel requested "that the date mentioned in the indictment be stated to the jury;" whereupon the court said, "you mean within the dates involved in the indictment?" to which counsel answered, "yes, sir." The court: "Well, perhaps I should say that."
Now we think that the court's impression that "he should say that" was correct. State v. Lyon, 45 N.J.L. 272. But instead of so doing, after a colloquy between the court and counsel, the court said, "well, I do not think in view of the fact ...