The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1895-06-08
GUILTY WITH A BIGlP
Judge Gummere Answers the
Mercer Grand Inquest's
Questions About
Mr.. Kelsey.
SEEMING CONTRADICTORY CHARGE
The Accused Is Indictable If 10
Is Proved He Acted With
Fraudulent Intent
SEEMING CONTRADICTORY CHARGE
Special to the Jersey City Nears.

| tain matters relative to the criminal re-
sponsibilfty of public officers in the per-
formance of their duties, the Mercer
County Grand Jury came into court yes
terday morning and were charged by
Justice William S. Gummere. in response
| to their questions, as follows:
Gentlemen of the Grand Jury:-The
Court has been informed by the Prose-
cutor that you desire instruction upon
certain matters contained in questions
which he has submitted to me relating
to the criminal responsibility of public
officers in the performance of their
duties, and I have asked you to attend
here this morning for the purpose of
charging you upon those matters.
The first question which you have subs
mitted to me is this. rs State officer,
who is entrusted With the collection OF
State funds. and who is required by
statue to make a report thereof quarterly
to the State Comptroller. criminally re-
sponsible for failing to make such report
and pay such fund into the State treas
ury, oftener than once each year?''
charge you on this subject, that if such
action upon the part of State officer
is done with fraudulent intent. It is an
indictable offelse; but # i be the re-
suit of an honest misconception of his
duty, based upon wrongful construc-
ton of the statute. it does not subject
him to criminal responsibility
MR.. KELSEY'S CLERK HIRE
The second question upon which you
have requested instruction as 1 under
stand it, is this:-"Where the salary of a
State officer is fixed by statute at a cer-
tain sum, and an extra allowance is
made to him for clerk hire, is it an in
dictaible offence for such officer to ap-
propriate to lis own use such portion of
this extra al lowance as is not actually
expended in The payment of his clerks?''
My instruction to you on this matter is,
that the right of such officer to appro-
pirate to his own use such unexpended
balance is a matter depending on the
construction of the words of the statute. .
which provides such extra allowance. ard
that unless the meaning of the statut3
be clear, and unless such officer has apx
propriated such unexpended balance t3
his own use, knowing that he had no
legal right to do so, he has not subjected
himself to criminal responsibility, even If
it should be afterwards judic:ally deter
mined that he had no right to keep such
unexpended balance, and was legally
bound to return it to the State Treasury.
The third question upon which you
have asked instruction IS this:-'Is a
State officer who is entrusted with the
collection of State funds criminally
sponsfble if he converts them to his own
use, provided he pays into the State
Treasury at the end of the fiscal year
a sum of money equal IN amount to the
funds which he has converted" The
statute of this State, gentlemen. declares
that any person holding an office of trust
and profit under authority of this State,
who shall embezzle any of the moneys
and property committed to his keeping
with intent to defraud the State, shall
be guilty of high misdemeanor. En-
bezzlement IS defined as the fraudulent
appropriation to ones own use of money
or goods of another which were i'm
trusted to his care
EMBEZZLEMENT DEFINED.
You will see. gentlemen, by what 7
have said. that the mere conversion to
his own use by a public officer of moneyso
intrusted to his keeping by the StateSls
not an embezzlement, unless it is accom-
panied by an intent to defraud; but that
irtent may be proved by eircumstantiaf
as we'll as by direct evidence, and in as
certaining whether such intent exists.
you should carefully consider all the
facts surrounding the conversion. You
should remember, on the other hand,
that although public officer, who holds
in his hands public funds, has imposed
upon him a trust of the most sacred
character, and that his use of them for
his own purposes is palpable violation
of that trust by which he substitutes
his own personal credit and liability for
the cash which the State has intrusted
the hazard of a loss. which it has never
consented to assume. 1 say that not
withstanding such facts SUCH conversion
does not constitute embezzlement unless
accompanied by fraudulent intent.
On the other hand you should remem-
intent is not disproved merely by show
ing that such officer. when he appro-
priated the States funds to his own uses
preparation of it had become known. and
had in his possession property of his
own fully, equal in amount to the money
taken. The intention to appropriate and
time are two different operations of the
funds must necessarily precede the res
titution thereof. and the first must be
complete before there is possibility OF
it may be the purpose of such officer
ultimately to do. the offense prohibited
by the statute is complete when fraud
ulent intent to make full appropriation
of the money intrusted to him is carried
into effect. When this is DONE resolu-
ton to make restitution at some future
period, no matter how honestly enter
tanned. will not relieve him from criminal
responsibility.
WHAT is FRAUDULENT INTENT.
A still further question upon which you
have asked advice is:-''Whether the an
preparation by a public officer to himself
of the profits which have been acquired
by him in the public use of public moneys
jntrusted TO his care is an indictable Of
fense?" What have already charged you
with regard to the conversion by public
officer of funds committed to his charge
fully answers this question. The notion
that a public officer may keep back the
interest or profit which he has. received
upon a deposit of public moneys. is alb
solutely with foundation. 1t is a clear
breach of trust. and &C done with fraud
ulent intent it is indfctable as embezzle-
ment.
The last question you have submitted
is this:-.If the evidence brought before
your body shall show there has been q
violation of the criminal law in any
of the ways mentioned by any of the
officers of this State, for what offence
should the officer be indicted?' In ans
wer / charge you that every public officer
who in the discharge of the duties of his
office commits any fraud or breach of
trust is guilty of official misconduct and
may be indicted for r1alfeassnce in Office
So, too, any State officer, who has with
fraudulent intent converted the moneys
of the State to his own use, may be in
djcfed for prphaZzlafnanf