State v. Lamoreaux, A--672

Decision Date06 January 1954
Docket NumberNo. A--672,A--672
Citation29 N.J.Super. 204,102 A.2d 68
PartiesSTATE v. LAMOREAUX.
CourtNew Jersey Superior Court — Appellate Division

Walter S. Keown, Camden, argued the cause for the defendant-appellant.

Benjamin Asbell, First Asst. Prosecutor of Camden County, Camden, argued the cause for the plaintiff-respondent (Mr. Mitchell H. Cohen, prosecutor).

Before Judges JAYNE, FRANCIS and FREUND.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Appellant appeals from his third conviction on an indictment charging the crime of false pretenses. The two previous convictions were reversed by the Appellate Division. 13 N.J.Super. 99, 80 A.2d 213 (1951); 20 N.J.Super. 65, 89 A.2d 469 (1952); 26 N.J.Super. 41, 97 A.2d 162 (1953).

The indictment charges that appellant

'* * * unlawfully, knowingly and designedly did falsely pretend to one Alexander Sabo that He, the said Charles R. Lamoreaux, would immediately commence construction of a home on a certain lot, and that He had sufficient finances, materials and labor available to do so * * *.'

as the result of which Sabo gave Lamoreaux the sum of $1,100 '* * * which sum the said Charles R. Lamoreaux did then and there unlawfully, knowingly and designedly receive and obtain from the said Alexander Sabo By means of the false representations and pretenses as aforesaid, and with intent to cheat and defraud the said Alexander Sabo of the same; whereas in truth and in fact he, The said Charles R. Lamoreaux did not commence construction on the aforesaid dwelling house on a certain lot, and He did not have sufficient finances, materials or labor available to do so as He, the said Charles R. Lamoreaux then and there well knew * * *.' (Emphasis supplied.)

On the first appeal, the Appellate Division declared that 'the alleged wilfully false representation charged to Lamoreaux in this indictment, that he 'would immediately commence construction,' * * * does not charge a crime' because it was promissory in character. 13 N.J.Super. 99, 103, 80 A.2d 213, 214. However, the indictment was expressly declared valid. Judge (now Justice) Brennan said:

'* * * The allegation that he knowingly misrepresented that he had sufficient finances, materials and labor to build the house does, however, charge designed misrepresentation of existing facts or conditions and alleges the crime of false pretense.' 13 N.J.Super. at page 103, 80 A.2d at page 215.

And of decisive importance in connection with the present review, the court also said:

'* * * The critical inquiry, then is whether the State's proofs sustained the State's burden to show that Lamoreaux in fact lacked finances, materials or labor at the times He represented He had them.' 13 N.J.Super. at page 103, 80 A.2d at page 215 (emphasis supplied).

At this trial the State did not undertake to prove that Lamoreaux lacked finances, materials or labor on the days he allegedly falsely pretended that he had them. Instead, it undertook to demonstrate that the New Era Construction Company, a New Jersey corporation of which Lamoreaux was president, treasurer and manager, did not have sufficient finances at such times to commence construction of a house immediately for Sabo. No proof was offered as to Lamoreaux' personal financial condition.

The testimony with respect to the financial state of the corporation was objected to on the ground that under the indictment the false pretenses of financial capacity related to Lamoreaux personally, that is, they were made by him with respect to his own situation. And it was urged that the financial condition of the corporation even though he was its active manager and the largest holder of stock among a number of stockholders, was not relevant against him to show his status from an asset standpoint at the crucial time. Furthermore, at the close of the State's case and again at the conclusion of the defense, a motion for dismissal was made on the ground of absence of evidence to support the allegation of the indictment that Lamoreaux falsely pretended he had sufficient finances to begin construction of the house. All of the objections and motions were overruled.

The theory of the State, which the trial court adopted, was that the corporation was the 'alter ego' of appellant. Assuming this to be true and that the evidence tended to establish that Lamoreaux was engaged in construction work through the corporation, it cannot be said that the financial incapacity of the corporation proved or tended to prove that at the time in question he did not have sufficient finances to commence construction of a house. The record is barren of any proof that Lamoreaux' interest in the corporation was his only financial asset. Consequently it is evident that the evidence submitted varies from and does not support the false pretenses alleged in the indictment.

It is undoubtedly the rule that in false pretense cases the indictment must state the facts of the crime with as much certainty as the nature of the case will reasonably admit, and that it should negative the pretenses by such specific allegations as will give the defendant notice of what he must prepare to defend. State v. Luxton, 65 N.J.L. 605, 48 A. 535 (E. & A.1901); Fowler v. State, 58 N.J.L. 423, 34...

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8 cases
  • State v. McDougald
    • United States
    • New Jersey Supreme Court
    • July 12, 1990
    ...notice of what he must prepare to defend.' " State v. Boratto, 80 N.J. 506, 518, 404 A.2d 604 (quoting State v. Lamoreaux, 29 N.J.Super. 204, 207, 102 A.2d 68 (App.Div.), aff'd, 16 N.J. 167, 107 A.2d 729 (1954)). On that basis defendant is also entitled to a reversal of his conviction for I......
  • State v. Boratto
    • United States
    • New Jersey Supreme Court
    • June 28, 1979
    ...true, as the lower court observed, that in false pretense cases clarity of expression is extremely important. State v. Lamoreaux, 29 N.J.Super. 204, 207, 102 A.2d 68 (App.Div.), aff'd 16 N.J. 167, 107 A.2d 729 (1954). Nevertheless, the lodestar of determining the sufficiency of an indictmen......
  • State v. Boratto
    • United States
    • New Jersey Superior Court — Appellate Division
    • November 30, 1977
    ...defendant received fees in excess of $50,000. Such a pleading does not conform with the mandate of State v. Lamoreaux, 29 N.J.Super. 204, 207, 102 A.2d 68, 69 (App.Div.), aff'd 16 N.J. 167, 107 A.2d 729 (1954), that "in false pretense cases the indictment must state the facts of the crime w......
  • State v. Devens
    • United States
    • New Jersey Superior Court — Appellate Division
    • February 3, 1958
    ...in State v. Lamoreaux, 13 N.J.Super. 99, 80 A.2d 213 (App.Div.1951); 20 N.J.Super. 65, 89 A.2d 469 (App.Div.1952); 29 N.J.Super. 204, 102 A.2d 68 (App.Div.1954), affirmed 16 N.J. 167, 107 A.2d 729 At the conclusion of the introduction of the evidence on behalf of the State, counsel for the ......
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