State v. Bartholomew

51 A. 455, 67 N.J.L. 382, 38 Vroom 382, 1902 N.J. Sup. Ct. LEXIS 150

• Court: Supreme Court of New Jersey
• Decided: February 24, 1902
• Status: Published

Opinion

The opinion of the court was delivered by

Collins, J.

Objection to the indictment returned was duly taken before a jury was sworn for the trial and its sufficiency is therefore regularly before us. It is based upon section 170 of the revised Crimes act of 1898 (Pamph. L., p. 794), which section reads as follows: “Any officer or agent, of this state, or of any public or municipal corporation existing by the laws thereof, into whose hands or possession any money, books, papers, evidences of debt or other instrument of writing, or other property of whatever nature, real or personal, belonging to the state, or the said public corporation, may have come, or shall hereafter come, by virtue of his office or agency, who shall refuse or neglect, on demand, to deliver the same to his successor in office, or other person or persons authorized by law to receive or have charge of the same, shall be guilty of a misdemeanor.” The plaintiff in error rightly contends that the section quoted, which is substantially a re-enactment of section 151 of the Crimes act as revised in 1875 (Gen. Stat., p. 1049), must be read in connection with “An act directing the collectors of taxes of townships and boroughs to surrender all official books and papers to the proper authorities,” approved March 28th, 1895. Pamph. L., p. 740. That act directs that the several collectors of taxes of the townships and boroughs of the state, and their successors, shall, upon the expiration of their terms of office and within sixty days after a settlement has been made with the township committee or governing body of the borough, surrender to said township committee or.governing body all tax duplicate books- and papers of their respective offices pertaining to the collection of taxes, and that any collector of taxes failing to surrender said tax duplicate books and other papers shall forfeit and pay the sum of $5 per day for each day’s failure beyond said sixty days, to be sued for and recovered in any court of law, by any resident taxpayer, for the use of the township or borough. It does not follow, however, that the one statute superseded. the other. The civil and criminal prosecutions may well subsist concurrently; but, of course, no offence against the criminal law consisting in a failure to deliver tax duplicate books or papers can be committed before a duty to ■ deliver them arises. As to money or other property, or books or papers not embraced within the phraseology of the act of 1895,' that statute is not applicable.

In the' ease in hand the pleader has conceived that an alternative allegation that a former collector of a borough named has, bn the demand of some one not named, refused to deliver to his successor in office or to any other authorized person the ledgers, account-books, receipts, vouchers and warrants in his possession belonging to the borough, suffices to present a cas'e within the section quoted from the Crimes act; but this is evidently not so. A demand, to be effectual, must be-by some one entitled to receive what is demanded; and an indictment for such a refusal must state facts that will disclose the right of the demandant to the delivery by the officer of something specifically demanded and sufficiently described. The principle laid down in the case of State v. Spear, 34 Vroom 179, exemplified'in the decisions there cited, will avoid the indictment before us. This renders it unnecessary to discuss the exceptions taken at the trial.

The judgment must be reversed; and the record being now' in this court, the indictment will be quashed.