On appeal, on certification granted, from the Appellate Division of the Superior Court, whose opinion is reported at 31 N.J. Super. 225.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. 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 (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. 2 A:111-1. 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. 2 A: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 (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 "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 (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, Roberts v. James, 83 N.J.L. 492, 497 (E. & A. 1912); 2 Wharton's Criminal Law (1932 ed.) 1698, 1731; Annotation 168 ...