Conford, Freund and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
These are consolidated appeals from (1) a sentence of defendant by the Middlesex County Court to imprisonment upon a jury conviction of embezzlement contrary to N.J.S. 2A:102-5; and (2) the denial of defendant's motion for a new trial and in arrest of judgment and from an earlier municipal court order which bound defendant over for grand jury action on a different charge.
Defendant and the complaining witness, Margaret A. Rocky (Mrs. Margaret A. Williams at the time of trial), met in January 1953 while she was a student nurse and
he a part-time orderly at St. Peter's Hospital in New Brunswick. He then and thereafter also held a full-time job with E.R. Squibb & Company. Miss Rocky graduated from the training course in September 1953, but continued to work as a graduate nurse at the hospital except for a short period during which she was engaged as an office nurse for a physician.
Defendant and Miss Rocky began seeing each other steadily in January 1954 and were formally betrothed Christmas Day, 1954. The engagement was destined to be a long one, but without the normal happy ending. Miss Rocky testified on behalf of the State that early in 1954, during discussion of her prospective education at college, for which she had been awarded a partial scholarship, defendant suggested that she "ought to start saving" about $25 per week. At the time she was being paid by the hospital at about the rate of $50 per week. Under the suggested plan, accordingly, she began in March 1954 to deliver $50 every two weeks to defendant, who was to hold it for her in her "fund." After their decision to marry, the college plans were abandoned and the fund was to be for her marriage and future.
While employed by the hospital, so she testified, she generally gave defendant her pay checks to cash. He would retain $50 and give her the balance. Sometimes she cashed the checks herself and gave defendant the $50 in cash. For a six-month period, when she was paid weekly as an office nurse, and from June or July 1958, when she became a private duty nurse and was paid directly by the patients, the frequency of payments and the amounts varied, but the pattern of turning money over to defendant regularly for him to hold for her remained the same. In addition, she gave him a $700 check that she received in settlement of a personal injury claim and loaned him $300, which she borrowed from a bank, at his insistence, to pay taxes on his property. Both the $700 and the $300 (upon repayment) were supposed to be added to her fund.
She occasionally requested an accounting, but defendant would give her none except to say he had the money in a bank, without identifying it. She grew increasingly uneasy about defendant's constant refusal to set a wedding date and his unending excuses for delay. Finally, on July 31, 1959, she insistently demanded he fix a wedding date and return her money, but defendant refused to do either, saying, as to the marriage, that he had "some problems," and, as to the money, "things will straighten out. Don't worry about it." Later, in August 1959, he said that if she would "keep quiet" he would return $5,000 of the money, but that she would have to wait for it. This was unsatisfactory to her. Her records indicated that by October 29, 1958, she had turned over to him a total of $7,076.
In defense, defendant categorically denied retaining any of Miss Rocky's money or maintaining a savings fund for her. He admitted cashing her checks, but said that he did it only as a convenience for her. He would either cash the checks and remit the full amount to her, or would pay her out of his cash on hand and then cash the checks to reimburse himself.
Other evidence in the case included most of the cashed checks with defendant's indorsements, and testimony going to the credibility of the complaining witness and the defendant and as to the relative affluence of the defendant, not necessary to be here detailed.
We deal first with defendant's contention that the State was estopped from procuring an indictment and conviction of him for embezzlement because the original complaint against him was for obtaining money by false pretenses.
Miss Rocky did not "keep quiet" about her grievances against defendant. On September 1, 1959 she swore out a complaint against her former fiance in which she alleged that he "knowingly ...