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State v. Kennedy

Decided: October 24, 1972.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
WILLIAM D. KENNEDY, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judges Conford and Sullivan. For affirmance -- None.

Per Curiam

Defendants William D. Kennedy and Marilyn Wolf were convicted of embezzlement in violation of N.J.S.A. 2A:102-5 and of conspiracy to embezzle. He alone appealed. The Appellate Division reversed his convictions in an unreported opinion. We granted the State's petition for certification. 59 N.J. 294 (1971).

The victim was Mrs. Mary Buzby, age 99, who lived alone. Kennedy met her in connection with some real estate transaction. Kennedy obtained a power of attorney purportedly signed by Mrs. Buzby and notarized by the codefendant,

Wolf, authorizing Kennedy to draw upon a savings account and a checking account, both in the Camden Trust Company. The power of attorney was dated January 22, 1968. The balance in the savings account was $29,179.30 and the balance in the checking account was $1,708.59. By February 5, 1969 the following had occurred: Kennedy withdrew all but $18.91 from the savings account, which withdrawals he deposited in the checking account, and by 12 checks to his own order, Kennedy withdrew $24,150, and by 27 checks he transferred $5,475 to his codefendant. Other checks totalling $1,441.30 were apparently issued for the benefit of Mrs. Buzby. The balance in the checking account as of February 5, 1969 was $23.26. During that period Kennedy deposited more than $27,000 in a joint account with his wife. It is plain that Kennedy appropriated these moneys to his own use.

Mrs. Buzby denied she signed the power of attorney and testified she had no transaction whatever with Kennedy involving a transfer or gift of her money to him. Neither Kennedy nor his codefendant took the stand.

The State having received an expert opinion that the signature on the power of attorney was Mrs. Buzby's, it prosecuted the defendants on alternative theories of larceny or embezzlement, and conspiracies to commit those crimes. The trial court carefully instructed the jury with respect to the pivotal question as to whether the substantive crime, if there was one, was larceny or embezzlement. The jury was told that this pivotal question turned upon whether Mrs. Buzby signed the power of attorney and did so competently, and that if she did, the larceny charges would fall away, and the jury would then concern itself with the embezzlement charges. The jury was then instructed as to the ingredients of the crimes of larceny and embezzlement, to be applied after the jury resolved the pivotal question we just mentioned.

The jury found the defendant guilty of embezzlement and conspiracy to embezzle, thus concluding that Mrs. Buzby had executed the power of attorney but that defendant fraudulently misappropriated the moneys he withdrew from the bank under the cover of the power of attorney. The evidence readily warranted that finding. Indeed it was inescapable.

In reversing, the Appellate Division held (1) the trial court should have ordered a judgment for defendant on the embezzlement charges, and (2) in any event the charge to the jury was erroneous.

The power of attorney was the bank's printed form. It contained the following:

"I hereby authorize CAMDEN TRUST COMPANY to honor, receive, or pay all such instruments signed in accordance with the foregoing authority even though drawn or indorsed to the order of said attorney, or tendered by him for cashing, or delivered, or used, in payment of the individual obligation of such attorney, or for deposit to his personal account, and said bank shall not be required to inquire as to the circumstances of the issuance, or use, of any instrument signed in accordance with the foregoing authority, or the application, or disposition of such instrument, or the proceeds thereof."

The Appellate Division read that provision to foreclose a charge of embezzlement. But a power of attorney of course is not an instrument of gift. In itself, it is no more than the term, power of attorney, imports -- an authorization to the attorney to act for the principal. Although as between the bank and the principal, the bank was relieved by the quoted provision of a duty to inquire as to whether any withdrawal was in the agent's interest rather than the principal's, the instrument did not authorize the agent to make off with the principal's money. In short, the instrument was the means whereby the agent was able to get his hands on the moneys, but when the moneys were thus ...


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