Jayne, Francis and Freund. The opinion of the court was delivered by Francis, J.A.D.
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 $1100
"* * * 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). 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." (p. 103)
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 time he represented he had them." (p. 103; 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's 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 ...