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State v. Kaufman

Decided: June 14, 1954.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN A. KAUFMAN, DEFENDANT-APPELLANT



Eastwood, Freund and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

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. 2 A:111-1. 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. 2 A:111-1 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, 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, * * *."

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 ...


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