State v. Kaufman

• Decision Date: 21 March 1955
• Docket Number: No. A--78,A--78
• Citation: 112 A.2d 721,18 N.J. 75
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. John A. KAUFMAN, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 75

18 N.J. 75

112 A.2d 721

The STATE of New Jersey, Plaintiff-Respondent, v. John A. KAUFMAN, Defendant-Appellant.

No. A--78.

Supreme Court of New Jersey.

Argued Feb. 7, 1955.

Decided March 21, 1955.

John O. Bigelow, Newark, for appellant (Lillian Clawans, Newark, attorney and of counsel).

C. William Caruso, Asst. Pros., Newark, for the State (Charles V. Webb, Jr., Essex County Pros., Newark, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

This is a criminal case in which the defendant appeals, upon certification granted, from a judgment of the Appellate Division of the Superior Court, 31 N.J.Super. 225, 106 A.2d 333 (1954), affirming in part and reversing in part a judgment of conviction entered in the trial court.

On October 5, 1953 the Grand Jury of Essex County returned an indictment in two counts against the defendant, charging that on two different occasions he had obtained the respective sums of $100 and $300 from Mary Briesmeister by false pretenses, contrary to the provisions of N.J.S. 2A:111--1, N.J.S.A. The jury returned a verdict of guilty on both counts and the trial judge imposed a general sentence of 18 months in the county penitentiary without allocation of any part thereof to either count. On appeal the Appellate Division found the first count of the indictment defective and reversed the judgment of conviction on that particular count, but affirmed the conviction under the second count, at the same time holding that the sentence would not be disturbed.

The first count of the indictment charges:

'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, whereas 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, contrary to the provisions of N.J.S. 2A:111--1, against the peace of this State, the government and dignity of the same.'

In declaring this count defective the Appellate Division held that it charged only a false statement of a present intention as to a future act, and did not constitute a misrepresentation of an existing or past fact required under the statute, citing State v. Lamoreaux, 13 N.J.Super. 99, 80 A.2d 213 (App.Div.1951). This conclusion was undoubtedly correct under R.S. 2:134--1, the statute involved in the Lamoreaux case. That statute, which was largely drawn from 30 Geo. II, c. 24, provided:

'Any person who, knowingly or designedly, by color of any false token, counterfeit letter or writing, or by any false pretense, shall obtain from any person any money, wares, merchandise, goods or chattels or other valuable thing, with intent to cheat or defraud any person of the same, shall be guilty of a misdemeanor.'

To fall within the coverage of that statute the false pretense had to relate to a past or existing fact. As stated in State v Lamoreaux, supra, 13 N.J.Super. 99, 102, 80 A.2d 213, 214 'it must not be promissory in character but must be a representation of something which at the time is untrue'; see State v. Tomlin, 29 N.J.L. 13, 21 (Sup.Ct.1860); State v. Pasquale, 5 N.J.Super. 91, 93, 68 A.2d 488 (App.Div.1949). The misstatement of one's present state of mind, although sufficient to sustain a civil action in fraud or deceit, was not a statement of an existing fact within this statute, State v. Lamoreaux, supra, 13 N.J.Super. 99, 103, 80 A.2d 213; Roberts v. James, 83 N.J.L. 492, 497, 85 A. 244 (E. & A.1912); 2 Wharton's Criminal Law (1932 Ed.), 1698, 1731; Annotation 168 A.L.R. 833. For criticism of this view see dissenting opinion in Chaplin v. U.S., 81 U.S.App.D.C. 80, 157 F.2d 697, 700, 168 A.L.R. 828 (C.A.D.C.1946).

The applicable statute here, however, is N.J.S. 2A:111--1, N.J.S.A., which was enacted by our Legislature as a part of chapter 344 of the Laws of 1951, replacing the aforesaid R.S. 2:134--1:

'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.' (Emphasis supplied.)

Unlike R.S. 2:134--1 this enactment specifically provides that 'false promises, statements, representations * * *' shall also constitute a crime. The inclusion of the word 'promises' reveals the legislative intention to make criminal false statements as to future, as well as past and present facts. A promise is 'an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future,' Restatement of the Law of Contracts, § 2(1). It is normally 'a stipulation for some future conduct by the promisor,' Loveland Co., Inc., v. Pennsylvania Sugar Co., 108 F.2d 603, 606 (4 Cir., 1940), certiorari denied 309 U.S. 683, 60 S.Ct. 724, 84 L.Ed. 1027 (1940). It is 'an express undertaking, or agreement to carry the purpose into effect,' Stewart v. Reckless, 24 N.J.L. 427, 430 (Sup.Ct. 1854). A promise is not only an undertaking as to the future, but it is necessarily also an assertion of an existing state of mind, a present intention to perform. And the statutory crime based upon a false promise must of necessity refer to this existing state of mind, since the only thing which can be false about a promise is the present intention, or existing state of mind, of the declarant not to perform. By including the words 'false promises, statements, representations * * *' in this state the Legislature intended to make criminal the false statement of an existing state of mind. See People v. Ashley, 42 Cal.2d 246, 267 P.2d 271, at pages 280--281 (Sup.Ct.1954); Annotation 168 A.L.R. 833, at page 841, and cases cited in Chaplin v. U.S., supra, 157 F.2d 697, at page 700.

In view of this change in the statute it is obvious that the first count of the indictment is valid. It charges that the plaintiff 'did by a false statement * * * that he was going into partnership with a Mr. Lyons in the painting contracting business * * *' obtain money from Mary Briesmeister who relied upon the false statement, which was false and known by the defendant to be false, all with the intent to cheat and defraud her. This count charges a false statement and representation as to one's present state of mind, a crime clearly falling within the coverage of N.J.S. 2A:111--1, N.J.S.A.

The defendant contends that the second count of the indictment is defective. There is clearly no merit to this argument. The Appellate Division correctly determined that the charge that the defendant falsely pretended to Mary Briesmeister that he 'was in partnership with a Mr. Lyons in the painting contracting business and that he * * * wanted to buy out his partner Mr. Lyons * * *' was an allegation of an existing fact falling within the purview of N.J.S. 2A:111--1, N.J.S.A.

The defendant also claims that the court erred in its charge to the jury. In the absence of requests to charge and specific objections to the charge as given, the defendant may not be heard on this point, R.R. 1:5--1. We have, however, read the charge and find it unobjectionable.

Another point raised by the defendant is that if the first count were invalid, the case should be remanded for resentencing. In view of our conclusion that the conviction under both counts of the indictment was valid this point becomes academic, but for the guidance of the trial courts we believe that an expression of our views is desirable. In rejecting the defendant's contention the Appellate Division, although finding that the first count of the indictment was defective, held that 'where, as here, two distinct offenses were joined in one indictment, the judgment will not be reversed because one of the counts charging a separate offense is fatally defective. The intendment will be that the sentence was pronounced on the valid count, providing the penalty imposed, as here, is authorized by law for conviction on the good count.' There have been a number of statements by the courts to this effect; see Cook v. State, 24 N.J.L. 843, 846 (E. & A.1855); Mead v. State, 53 N.J.L. 601, 603, 604, 23 A. 264 (E. & A.1891); Stephens v. State, 53 N.J.L. 245, 250, 21 A. 1038 (Sup.Ct.1891); State v. Matarazza, 93 N.J.L. 47, 49, 107 A. 266 (Sup.Ct.1919), affirmed 94 N.J.L. 263, 109 A. 304 (E. & A.1920); State v. Grover, 104 N.J.L. 10, 139 A. 417 (Sup.Ct.1927); State v. Longo, 133 N.J.L. 301, 44 A.2d 349 (E....