Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendants Vojacek and Fischer, owners and operators of a used car business known as Ladd's Auto Sales, were indicted, together with certain of their salesmen, for conspiring to obtain money and other things of value by false pretenses, in violation of N.J.S. 2 A:98-1 and 2. The charge was that they knowingly, fraudulently and falsely represented to customers that certain motor vehicles offered for sale were leftover new cars which had not been sold after the latest models had become available, when, in fact, the motor vehicles were used cars. The overt acts set out in the indictment described an advertising program in newspapers, on television and on radio wherein Ladd's Auto Sales announced that it had "leftover" cars for sale. Three of the overt acts referred to specific transactions in which Walters and Monaco, two salesmen, and Fischer, respectively falsely represented to purchasers that certain used cars were new cars.
Vojacek and Fischer were convicted, as were Walters and Monaco, but only the former appeal.
Evidence supporting the conviction came through the testimony of a number of purchasers who stated that many cars were represented to them as new by Vojacek and Fischer and by their salesmen, when in fact they were used automobiles. The conviction was additionally amply supported by evidence of newspaper, television and radio advertisements of "leftover" automobiles, so worded as to lead the public to believe that all of the cars mentioned were leftovers, whereas many if not most of them were actually used cars. The State established through purchasers that
they relied upon the language of these advertisements as meaning new cars left over from a previous year, and not used cars.
Defendants denied misrepresentation, and Vojacek testified that in the trade "leftovers" could refer to new or used cars of prior years' models -- they were simply surplus merchandise. However, Vojacek was confronted with contradictory testimony he had given before the grand jury to the effect that a car with a mileage reading of more than about 1,000 miles would be considered a used car and not a "leftover." There was also defense testimony that each time "leftover" cars of prior years were advertised, there was a new car or cars on Ladd's Auto Sales premises matching the description in the advertisements.
Among the stipulations entered into before trial were: (1) in the conditional sales contracts signed by customers the space provided for the word "new" or "used" was always left blank, and (2) each car referred to by the State's witnesses was actually a used car, and known to be such by each of the defendants at the time the car was sold.
On this appeal defendants Vojacek and Fischer do not argue that the verdict was contrary to the weight of the evidence. This is understandable in light of the fact that the record supports the conviction in fullest measure. Rather, their major ground of appeal is that the trial court erred in refusing to permit testimony which, defendants claim, would have enabled them to demonstrate that their profit on each of the sales said to have been fraudulently induced was not greater than a normal or fair profit, and that the price they received for the cars not in excess of their market value as used cars. Defendants argue that evidence of the cost of the cars to them and the prices at which they sold them to their customers, as well as the actual fair value of the cars in the condition they were at the time of the sale, and the fair value of the cars had they in fact been new leftover models, should have been admitted
to show lack of motive for a conspiracy to obtain money by false pretenses. The rationale of this argument is that if the jury knew that defendants did not obtain an unfair price for the cars in their actual condition, it would have been less likely to convict them of the misrepresentation charged.
The State argues in its brief, and the record tends to support its contention, that the trial judge did permit defendants to show their cost on each car sold, as well as the sales price, thus revealing the amount of their profit. What the court refused to permit was evidence of the fair market value of each car, first, in its actual condition as of the date of the sale and, ...