State v. Kaufman
| Decision Date | 14 June 1954 |
| Docket Number | No. A--401,A--401 |
| Citation | 106 A.2d 333,31 N.J.Super. 225 |
| Parties | STATE v. KAUFMAN. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
C. William Caruso, Sp. Asst. Prox., Newark, for plaintiff-respondent (Charles V. Webb, Jr., Essex County Pros., Newark, attorney).
Lillian Clawans, Newark, for defendant-appellant.
Before Judges EASTWOOD, FREUND and FRANCIS.
The opinion of the court was delivered by
EASTWOOD, S.J.A.D.
The defendant appeals from his conviction on an indictment containing two counts charging the obtaining of the respective sums of $100 and $300 from one Mary Briesmeister by false pretense, in violation of the provisions of N.J.S. 2A:111--1, N.J.S.A. His contention is that (1) the indictments are defective; and (2), that the court's charge was erroneous in several respects. A timely motion to dismiss the indictment was made to the trial court.
The pertinent provision of N.J.S. 2A:111--1, N.J.S.A., reads as follows:
'Any person who, knowingly or designedly, with intent to cheat or defraud any other person, obtains any money, property, security, gain, benefit, advantage or other thing of value by means of false promises, statements, representations, tokens, writings or pretenses, is guilty of a misdemeanor.'
We set forth the challenged portions of the indictment as follows:
First count:
'* * * John A. Kaufman, on the 15th day of June, 1952, at the City of Newark, in the County of Essex aforesaid and within the jurisdiction of this Court, did by a false statement to Mary Briesmeister to wit: that he, the said John A. Kaufman, was going into partnership with a Mr. Lyons in the painting contracting business, where as in truth as the said John A. Kaufman then knew he was not going into a partnership with a Mr. Lyons in the painting contracting business and the said Mary Briesmeister relying upon the said false statement, to wit: that he, the said John A. Kaufman, was going into partnership with a Mr. Lyons in the painting contracting business, as true and being deceived thereby did then and there give to the said John A. Kaufman money to the value of $100.00 and the said John A. Kaufman did then and there knowingly and designedly by color and means of said false statement obtain from the said Mary Briesmeister money to the value of $100.00 of the goods and chattels of the said Mary Briesmeister with intent to cheat and defraud the said Mary Briesmeister of the same, * * *.'
Second count:
'* * * John A. Kaufman, on the 29th day of June, 1952, * * * did falsely pretend to Mary Briesmeister that he, the said John A. Kaufman, was in partnership with a Mr. Lyons in the painting contracting business and that he, the said John A. Kaufman wanted to buy out his partner, Mr. Lyons, in the said painting contracting business, whereas in truth as the said John A. Kaufman then knew he, the said John A. Kaufman, was not in partnership with a Mr. Lyons in the painting contracting business, and the said Mary Briesmeister relying upon the said false pretense as true and being deceived thereby did then and there give to the said John A. Kaufman money to the value of $300.00, and the said John A. Kaufman did then and there knowingly and designedly by color and means of said false pretense obtain from the said Mary Briesmeister money to the value of $300.00, of the goods and chattels of the said Mary Briesmeister, with intent to cheat and defraud the said Mary Briesmeister of the same, * * *.'
It is generally conceded that the crime of false pretenses is not committed by the mere perpetration of a deception, but becomes such an offense when one is prejudiced thereby. A false pretense, in order to be criminal, must be a false statement of a past or an existing fact. False representations or misrepresentations promissory in character do not constitute false pretenses. 22 Am.Jur., False Pretenses, secs. 5, 8 and 12, pp. 448, 449, 451. See also 27 Am.Jur., Indictments and Informations, sec. 54, p. 621; 35 C.J.S., False Pretenses, §§ 42, 43, pp. 686--693; 22 Am.Jur., supra, sec. 26, pp. 458, 459; sec. 92, p. 495; sec. 93, p. 495; sec. 96, p. 497.
Applying the principles of law hereinbefore enunciated, we are persuaded that the first count of the indictment is fatally defective. The language employed, as we view it, does not yield to more than one specific construction, viz.: that the act charged against the defendant was not a past or existing fact, but actually was promissory in character. In substance, it was charged that Kaufman falsely represented to his victim that if she would give him $100, he was intending to go into partnership with a Mr. Lyons in the painting contracting business. Clearly, this was not a representation that related to a past or existing fact. There is no charge in the indictment that Kaufman was then negotiating with Mr. Lyons or in any way had made any arrangements of any kind with Mr. Lyons for the purpose of effecting such a partnership, but the act charged against Kaufman is that he was going into partnership with Lyons--something he would do in the future.
The State argues that 'The statement that he 'was going into partnership' with Lyons, which induced the Briesmeister woman to part with her money, was to be given the only logical interpretation which such expression would convey to any reasonable person, namely, that he was then engaged in negotiations with Lyons for the express purpose of forming a business partnership.' We disagree with the State's contention. There is an absolute absence in the indictment of any language which would justify the assertion that Kaufman represented that he was then engaged in negotiations with Lyons for the purpose of forming a partnership.
It is the settled rule that where one is charged with obtaining money or something of value from a person by false representations of some intended action to be performed in the future, and which does not embrace a false representation of a past or existing fact, no criminal offense is sufficiently charged and the indictment must fall. In fact the well established rule in most jurisdictions is that the criminal offense of obtaining money or other valuable thing by false pretense is not predicable upon the present intention of the defendant not to comply with his promises or statement as to his future acts. 168 A.L.R., False Pretense--Promissory Statement, p. 835, and supporting citations. In the comparatively recent opinion of former Judge, now Mr. Justice Brennan, in the case of State v. Lamoreaux, 13 N.J.Super. 99, 80 A.2d 213 (App.Div. 1951), the New Jersey rule is clearly enunciated, to wit:
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