Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
Defendant was convicted of embezzlement under an indictment which charged that,
"on divers days between the 1st day of December, 1951, and the 5th day of May, 1953, being the agent of Mayfair Apartments, Inc., a corporation of the State of New Jersey, his principal, and as such agent entrusted with the care and collection of rent moneys and payments due to such corporation, and having as agent received, collected and obtained from tenants of said corporation the sum of $88,785.44, the property of the said Mayfair Apartments, Inc. * * * (he) did willfully, unlawfully and feloniously retain and appropriate to his own use the said sum of money aforesaid, knowing the same to belong to the said Mayfair Apartments, Inc., * * * with intent to defraud the said Mayfair Apartments, Inc. * * * contrary to the provisions of N.J.S. 2 A:102-5 * * *."
It is argued that the statute on which the indictment is based is void as vague and indefinite and consequently repugnant to the Fourteenth Amendment of the Federal Constitution. More specifically it is claimed that a penal statute creating a new offense must be explicit in its description of the conduct proscribed and that due process is violated where its terms are so vague that men of common intelligence must guess at the meaning. Lanzetta v. State of New Jersey , 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939).
N.J.S. 2 A:102-5 became effective in its revised form on January 1, 1952 (L. 1951, c. 344). It provides:
"Any employee, agent, consignee, factor, bailee, lodger or tenant who embezzles or, with intent to defraud, takes money or receives, retains or appropriates to his own use or the use of another, any property or the proceeds of the sale of the same, or any part thereof,
belonging to his employer, principal, consignor, bailor or landlord, is guilty of a misdemeanor."
The suggestion is that use of the word "embezzles," which did not signify a crime at common law, without specific definition as to what is being made criminal, renders it necessary for the public to speculate about the nature and elements of the crime. Further it is said that in the context "embezzles" stands alone disconnected from the remainder of the sentence, so that no answer is provided for such questions as: "Embezzles what?" and "Embezzles from whom?"
We find no legal merit in these criticisms. Although the construction and perhaps the punctuation of the sentence could be improved, the implication is plain so far as the present case is concerned. An employee, agent, consignee, factor, bailee, lodger or tenant is guilty of embezzlement if (a) he embezzles money belonging to his employer, principal, consignor, bailor or landlord, or (b) if with intent to defraud he takes money belonging to his employer, principal, consignor, bailor or landlord that has come into his possession lawfully.
Moreover the connotation of the word "embezzles" is obvious. It has had a settled significance in the law from the time of the first judicial declaration that conversion or misappropriation of money or property of an employer or principal by a servant or agent which had been entrusted to him by another, did not constitute common-law larceny. Since then embezzlement has meant generally the intentional and fraudulent appropriation of the property or money of another by a person into whose hands it had lawfully come or to whom it had been entrusted. State v. Carr , 118 N.J.L. 233 (E. & A. 1937); State v. Woodward , 99 N.J.L. 49 (Sup. Ct. 1923); State v. Egan , 84 N.J.L. 701 (E. & A. 1913); 29 C.J.S., Embezzlement , § 1; 2 Wharton, Criminal Law (12 th ed. 1932), p. 1568, § 1258; 2 Burdick, The Law of Crime (1946), § 562; Webster's New International Dictionary. The definition was so well known that in 1529 the first statute known to deal with such breach of trust made it a felony for any servant to "embesill" his
master's caskets, jewels, money, goods or chattels or any part thereof, above the value of forty shillings. 21 Henry VIII, ch. 7; 3 Coke's Institutes, p. 105.
It has been said that the single word "embezzle" in an indictment contains within itself the charge that the defendant fraudulently appropriated the money or property to his own use. People v. Catcott , 393 Ill. 582, 67 N.E. 2 d 175 (Sup. Ct. 1946); State v. Hudson , 93 W. ...