Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
[53 NJSuper Page 8] Defendant appeals from a judgment of conviction on an indictment in two counts charging him with obtaining money by false pretenses in violation of N.J.S. 2 A:111-1. The first count charged that defendant on September 10, 1953 obtained $15 from one Guiney by knowingly and designedly, and with intent to cheat and defraud, making false statements, representations and promises that he would print, publish and deliver 200 picture calendars to Guiney on or before November 1, 1953, the $15 being a deposit on the agreed price of $50. The second count charged a similar offense in that he obtained $20 from Guiney on October 2, 1953 in connection with the same transaction. The court sentenced defendant to a State Prison term of from 1-3 years on the first count, giving credit for time spent in custody, and suspended sentence on the second count.
The indictment in question was tried with another charging defendant with issuing a bad check, in violation of N.J.S. 2 A:111-15, on which charge the jury returned a not guilty verdict. This matter is not involved in the present appeal. The only witness for the State was Guiney.
Defendant was in the business of making up calendars and picture postcards for advertising various kinds of businesses. He had done some work of that nature for the proprietor of an inn in Highlands, N.J., who introduced him to Guiney in the early part of September 1953. Guiney was engaged in the real estate and insurance business. Shortly thereafter defendant spoke to Guiney about making up calendars for distribution to his customers by way of advertising. It was agreed that defendant was to make up 200 calendars on each of which there was to be a photograph of a certain house designated by Guiney. An agreement was reached and a memorandum of the same given by defendant to Guiney dated September 10, 1953. The memorandum recited that defendant was to make up 200 picture calendars for Guiney for $50; that the picture was to be of the so-called Rubley house, and that $15 had been received by way of deposit. The receipt was signed "G.E.T., P.O. Box 103, Red Bank, N.J." (The initials stood for Grace E. Trypuc, defendant's wife, but no point was made of that fact at the trial.) Although no time for delivery was mentioned on the receipt, Guiney testified that the calendars were to be delivered on or before November 1, 1953.
On or about October 2, 1953 defendant showed Guiney a photograph he had taken of the Rubley house, and Guiney approved it. At that time defendant requested an additional $20 against the price of the calendars, stating that he needed it to pay for materials. Guiney gave him that sum and obtained a receipt similar to the one given for the initial payment. Defendant told Guiney he was going to move shortly, and as soon as he did he would notify him. The calendars were not delivered on November 1. Guiney waited a week or so, and then attempted to get in touch with defendant through the Red Bank post office box address.
His letters having gone unanswered, he then tried to locate him and after seven or eight days found him in Leonardo, N.J., to which place he had just moved. Defendant assured him then and on a number of occasions thereafter that he would have the calendars ready in two or three days. After Christmas and New Year's had passed, Guiney told defendant that if he could get the calendars he could still use them. Finally, some time in January, Guiney asked defendant to show him at least one calendar or anything he had bought. Defendant had nothing to show him, finally admitting that "there were no calendars and there would be no calendars." Guiney asked for his money back and, failing to obtain it, went to the police station and filed a complaint on January 15, 1954. The indictment, returned much later, stemmed from this complaint.
Guiney testified that altogether he went to defendant's home at least 50 times in an attempt to collect the $35, both before and after filing the complaint. In the course of the following year Mrs. Trypuc gave Guiney a total of $15 in partial repayment. On cross-examination Guiney volunteered the information that Trypuc had "skipped" before this repayment. Further, that defendant had deserted his wife, to which statement defense counsel objected "unless he [Guiney] can prove it," to which the witness answered "Oh, I can prove that." Guiney also volunteered that the chief of police had brought the complaint to Freehold, the county seat, "so that the statute of limitations wouldn't run out."
Defendant sets out four grounds of appeal: (1) error by the trial court in denying his motion for judgment of acquittal at the close of the State's case; (2) plain error in the trial court's failure to strike prejudicial testimony, i.e. , Guiney's reference to defendant's having "skipped" and deserted his wife; (3) error in charging the jury that it should be its object "to arrive at a common conclusion"; and (4) error in charging as to the effect of proof of conviction of crime on the credibility of a witness.
Turning to the first ground of appeal, it is, of course, settled that the sufficiency of the State's case on a defendant's motion for acquittal at the close of the State's case must be determined solely on the basis of the proofs as they stand at that posture of the case. State v. Pearson , 39 N.J. Super. 50, 55-56 (App. Div. 1956). Defendant contends that a directed verdict of acquittal should have been granted at that point in the trial because there was an insufficient basis for an inference that when Guiney made either of the payments defendant at that time had an intention not to perform his promise to deliver the calendars.
N.J.S. 2 A:111-1 provides that any person who "knowingly or designedly, with intent to cheat or defraud any other person, obtains any money * * * by means of false promises, statements, representations * * * or pretense, is guilty of a misdemeanor." The statute was enacted as part of L. 1951, 1 st Sp. Sess., c. 344, the revision of Title 2 of the Revised Statutes , and replaced the former statute, R.S. 2:134-1 and 2. As pointed out in State v. Kaufman , 18 N.J. 75 (1955), the revision effected an important change in the former statute. Under the prior law a false statement of a present intention as to a future act did not constitute a misrepresentation of an existing or past fact, as required by the statute. State v. Lamoreaux , 13 N.J. Super. 99 (App. Div. 1951). L. 1951, 1 st Sp. Sess., c. 344 (N.J.S. 2 A:111-1), added the significant word "promises" to the statute, which led our Supreme Court to hold in the Kaufman case, 18 N.J. at pages 79-80, that the inclusion revealed a legislative intention to make criminal false statements as to future as well as past and present facts. "By including the words 'false promises, statements, representations, * * *' in this statute the Legislature intended to make criminal the false statement of an existing state of mind." And see State v. Pearson , above, 39 N.J. Super. at page 58.
Although the Lamoreaux case was decided prior to the revision of the statute, the statement therein contained as to the quality of proof ...