For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
Defendant, Robert R. Daly, a member of the bar of this State, was convicted of embezzlement in the Somerset County Court following a non-jury trial. We certified for determination in this court his ensuing appeal to the Appellate Division.
The indictment charged that "on the 21st day of December, 1959 and on divers days and dates subsequent thereto, * * * [Daly] being the agent and bailee of Komline-Sanderson Engineering Corp., a corporation of the State of New Jersey, unlawfully did embezzle * * * and appropriate to his own use money to the amount of $20,000 belonging to the said Komline-Sanderson Engineering Corp., * * * with intent to defraud said corporation thereof, contrary to the provisions of N.J.S. 2 A:102-5, * * *."
The proof showed that for some time prior to December 21, 1959, Daly had acted as attorney for Komline-Sanderson and on that date was handling certain unfinished
matters for it. On December 21, 1959 Daly came to the office of Komline-Sanderson at Peapack-Gladstone, New Jersey, and conferred there with Thomas R. Komline, President of the company. The purpose of the meeting, according to Komline, was to complete the final details respecting the proposed purchase of certain property, in which Daly was to act for the company. At that time, Komline delivered a Komline-Sanderson check for $20,000 drawn to the order of "Mr. Robert R. Daly, Attorney," which he asserts and Daly denies was to be used to buy the property. On receiving the check, Daly immediately prepared, signed and gave to Komline the following receipt:
"Komline-Sanderson Engineering Corporation,
This will acknowledge receipt of $20,000 to be used by me as your attorney to purchase in your name the real estate in Peapack, N.J., known as the station area including the station building and the dwelling thereon.
I shall deliver to you on or before April 15, 1960, a deed to said premises free and clear of all encumbrance approved both by the Board of Public Utility Commissioners and the Small Business Administration.
If the acquisition is to cost more than $20,000, I shall notify you in writing of the price and you shall have ten days in which to agree to the higher price.
I shall deliver the deed on or before April 15, 1960, and if I am unsuccessful in acquiring the property by that date I ...