State v. WoodwardState v. Woodward
The opinion of the court was delivered by
The defendant was convicted of the crime of embezzlement, upon the fоllowing state of facts: The de *50 fend ant received certain tools in the county of Mercer, and at that rime stated that he knew a person in Chesterfiеld township, county of Burlington, New Jersejr, to whom he thought he could sell the tools for the complaining witness (the owner); that he took the tools as aforesаid with the understanding that if he succeeded in making the sale he should bring the money, received from the sale thereof, to the son of the complaining witness, who wаs employed at the same mill in which the defendant was employed. That therеafter the tools were removed to a place in Chesterfield township, county of Burlington, and the defendant came to the son of the complаining witness and said to him, “The man who was going to take the tools has changed his mind, but I will takе them off your mother’s hands myself. Here is $5 on the purchase price for you to take to her.” That the said son of the complaining witness received the sum оf $5 and took it to the complaining witness stating that he liad received it from the dеfendant. That the complaining witness accepted the money, but said nothing, аnd that a few weeks thereafter complaint was made against the defendant for withholding the tools or the proceeds from the sale thereof.
After taking the tools the defendant was requested to bring them to the home of the сomplaining witness in order that they might be examined by a prospective purсhaser. The defendant, in reply to the said request, said that he was willing to bring the tools but was too busy at the time. We are unable to perceive the constituеnt elements of a crime in this situation. Obviously, the plaintiff in error received the gоods under an agreement to purchase the same, and actually pаid $5 on account thereof, and thereafter continued to use the goods as his property.
To constitute the crime of embezzlement, except in certain statutory cases, there must be some evidence of an intent to illegally appropriate the property claimed to his own use; and quite obviously the retention of the property upon a bona jide claim of ownеrship is inconsistent with the existence of such intent. Where an act becomes criminal only *51 by reason of the intent with which it is clone, such intent must be proved. State v. Malloy, 34 N. J. L. 410; 8 R. C. L. and cases 60; 15 Cyc. 495.
The maxiin actus non facit reum nisi mens sit rea is not without application in the situation presented her. Commonwealth v. Mixer, 207 Mass. 141.
The gist оf this crime consists in the fraudulent intent of the defendant to convert another’s рroperty to his own use. Burnett v. State, 62 N. J. L. 510; State v. Egan, 84 Id. 701.
In this case there was no such intent proved, nor was it infеrable from the defendant’s acts or conduct, which are entirely consistent with a bona fide claim of purchase; and while a prior demand for the return of the рroperty and refusal are not essential elements of the crime in cеrtain cases (State v. Egan, supra), they present some evidence upon which the crime may be predicated. To constitute a conversion in the common law action of trover, demand and refusal are essential prerequisites of рleading- and proof to the maintenance of the action, and a fortiori in a рrosecution of this character, involving the liberty of the citizen, his attitude regarding the ownership of the property in question, under the rule of reasonable doubt, cannot be left in the atmosphere of conjecture, but becоmes at least equally important, as in a civil suit upon the question of defendant’s criminal intent. Fitzgerald v. State, 50 N. J. L. 475; State v. Reynolds, 65 Id. 424, 430; State v. Temple, 63 Id. 375, 377.
We find nothing in the record evincing such intent, or anything incompatible with а bona fide claim of ownership, based upon a prior agreement of purchase and sale, between the complaining witness and the defendant, on account of which sale a part payment of the consideration had been made and accepted.
We find it unnecessary, in this view of the fundamental question involved, to discuss the issues of procedure presented by the briefs.
The judgment of conviction will be reversed.