On error to the Essex County Court of Special Sessions.
For the plaintiff in error, Siegler & Siegler (Irving Siegler, of counsel).
For the defendant in error, William A. Wachenfeld, Prosecutor of the Pleas, and C. William Caruso, Special Assistant Prosecutor.
Before Brogan, Chief Justice, and Justices Parker and Oliphant.
The opinion of the court was delivered by
OLIPHANT, J. Plaintiff in error was tried and convicted in the Essex County Court of Special Sessions on an allegation, an indictment and trial by jury having been waived, which charged him with obtaining money under false pretenses.
The entire record of the proceedings had upon the trial has been returned with the bill of exceptions under R.S. 2:195-16.
There are eleven assignments of error and identical specifications for reversal argued under six points.
First: It is urged that the state failed to establish the making of false representations by the defendant. The allegation charged that "Milton Hubschman did by color and means of false pretense, obtain the sum of twelve thousand dollars for a half interest in a tavern situated at 329 6th Avenue, in the City of Newark, by falsely representing to the said Aart Paerels and his wife Julia, that the tavern was unencumbered, when in truth and fact the said Milton Hubschman then and there knew that there was a chattel mortgage on the said tavern on file in the Office of the Essex County Register of Deeds and Mortgages, and the said complainant relying upon the representations of the said Milton Hubschman as true, was cheated and defrauded of the sum of $12,000.00 contrary to the form of the Statute, in such case made and provided."
There was evidence in the case that the defendant upon being asked if there were any outstanding bills or mortgages against the place answered "there was a small liquor bill outstanding." There was further testimony by the son of the complainant as follows:
"Q. You listen carefully to me. Did your father ask Mr. Hubschman whether there were any chattel mortgages or Hubschman whether thee were any chattel mortgages or encumbrances upon this place? Yes or no. A. Yes, he did. Q. He asked him that? A. Yes. Q. What did Mr. Hubschman say about any chattel mortgages on the premises? A. There weren't any."
It is admitted that there was an existing recorded chattel mortgage for $5,000 on which was due the sum of $4,500 on September 12th, 1944, and that defendant knew of this fact, whereas complainant did not. There was, as seen, evidence of an affirmative false representation. There was also unequivocal testimony that complainant relied on the representation that there was no mortgage existent, that complainant was induced thereby to part with his money and that as a result of the ...