Matthews, Seidman and Horn. Seidman, J.A.D. (dissenting).
[157 NJSuper Page 27] Following defendant's conviction of embezzlement (N.J.S.A. 2A:102-5) by a jury, he filed
this appeal. He was convicted on an indictment charging him with embezzling $360.84 worth of auto parts belonging to his employer between October 22, 1971 and March 6, 1973.
Defendant raises two issues. The first is whether the trial judge abused her discretion in excluding evidence offered by defendant tending to show that defendant's employer at the time of trial possessed auto parts similar to or identical to the parts allegedly embezzled. We need not consider this issue. We have concluded that the conviction must be reversed because the State failed to prove beyond a reasonable doubt that defendant committed the crime. This point is raised by the second ground of appeal assigned by defendant -- that the trial judge erred in failing to grant defendant's motion for judgment of acquittal. R. 3:18-1.
The test for determining whether to grant a motion for judgment of acquittal is:
Throughout the interval referred to in the indictment, from October 22, 1971 to March 6, 1973, defendant was employed by Northwest Airlines, Inc. The State established that during that period of time defendant, who was authorized to order parts on behalf of his employer, ordered and signed for automotive parts which could not be used by Northwest but could be used or adapted for use in two automobiles, Ramblers, that defendant ostensibly owned. The State presented no evidence as to what happened to the parts after delivery to the employer's premises.
The State and defendant stipulated that the initials "CB" on the relevant purchase orders and invoices were defendant's,
and that the writing on the purchase-order form was defendant's. Normally the purchase order was filled out before the goods were delivered, but sometimes would be prepared at the time of the delivery of the goods. In those instances where the purchase order was filled out at the time the goods were delivered and the invoice presented, the person filling out the purchase-order form would be the same person who initialed the invoice. Generally, though, the person who initialed the invoice was not necessarily the person who made up the purchase order. The employer sometimes paid for items not on an invoice, for reasons which are not apparent.
Defendant was an employee of Northwest for eight years, and from October 1971 to March 1973 was a mechanic for that company at the Newark Airport. There were six other mechanics also employed by Northwest at the airport. It was testified that at least three or four employees of Northwest owned Ramblers between 1971 and 1973.
The trial judge, in denying the respective motions for acquittal made at the close of the State's case and after the evidence of all parties had been closed, recognized that one of the elements necessary to be established beyond reasonable doubt was that defendant appropriated to his own use the property which he received. She held that there was sufficient testimony to establish that by the fact that the particular parts which defendant allegedly ordered were "generally used * * * for passenger car use," and that
The judge concluded that on the basis of this circumstantial evidence the jury could find that defendant appropriated
the automobile parts to his own use. We cannot agree. In effect the trial judge found that the jury could infer that defendant appropriated the automobile parts to his own use merely from the evidence that he ordered them, that they were of the kind that could not be used on Northwest's equipment and that they could be used on the make of car or cars owned by defendant. Although defendant disputed the foregoing evidential facts, the trial judge properly could assume all facts favorable to the State's case to be true for the purposes of the motion. State v. Reyes, supra.
There was no direct proof that defendant actually converted the parts to his own use. Consequently, the issue is reduced to the question of whether said proofs were a sufficient basis upon which a reasonable inference of misappropriation of the auto ...