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State v. John P. Callaghan Co.

Decided: November 29, 1961.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JOHN P. CALLAGHAN COMPANY, MICHAEL SPRAGUE, JOSEPH DIROMA, FRANCIS X. KEEGAN, HENRY AGNEW AND CHARLES MEIER, DEFENDANTS



On motion to dismiss indictments.

Waugh, A.j.s.c.

Waugh

The defendants move to dismiss certain indictments against them. Indictments No. 963, 964 and 965 charge the John P. Callaghan Company with violating N.J.S. 2A:111-1 by obtaining money by false pretenses with intent to defraud the Terminal Construction Corporation. Indictment No. 962 charges defendants John P. Callaghan Company, Francis X. Keegan, Henry Agnew, Charles Meier, Joseph DiRoma and Michael Sprague with violating N.J.S. 2A:98-1 by conspiring (1) to obtain money from the Terminal Construction Corporation under false pretenses, and (2) to cheat and defraud the public by providing ready-mix concrete not in accordance with the required specifications.

At argument the following factual context was developed. The Newark Parking Authority, a corporation created pursuant to N.J.S.A. 40:11A-1 et seq. , engaged the Terminal Construction Corporation to construct an underground parking garage beneath Military Park in the City of Newark. Terminal contracted with the defendant Callaghan for the supply of ready-mix concrete in accordance with certain specifications as provided in the building contract. The Newark Parking Authority retained defendant Keegan, trading as Newark Testing Laboratories, to test the concrete and report the findings to the interested parties. Codefendants Agnew and Meier were employees of Keegan. Codefendant Sprague is president of defendant Callaghan and codefendant DiRoma is an employee of Callaghan.

The Military Park garage collapsed while under construction. As a result of investigation of the collapse, the grand jury brought these four indictments. The State, however, concedes that it need not, at trial, prove the collapse was causally related to the alleged actions for purposes of proving the alleged charges against these defendants.

Indictments No. 963, 964 and 965 are worded in virtually identical terms except for the dates and the amounts of money involved. A decision on the validity on any one is controlling on the other two. The charging portion of indictment No. 963 reads as follows:

"* * * on the 9th day of February, 1960 and on divers dates between the 4th day of January, 1960, and the 31st day of January, 1960 * * * the John P. Callaghan Company * * * did, with intent to defraud, falsely pretend to the Terminal Construction Company * * * that it had delivered to the said Terminal Construction Corporation during the month of January, 1960, various quantities of ready-mix concrete containing specified amounts of cement, sand and gravel in each cubic yard thereof and that the cement contained therein was of a specified brand and type, whereas, in truth and fact as the said John P. Callaghan Company then and there well knew, the quantities of ready-mix concrete it had furnished to the said Terminal Construction Corporation during the month of January, 1960, contained lesser amounts of cement and gravel and greater amounts of sand than specified and contained brands and types of cement other than specified, and the said Terminal Construction Corporation relying upon the said false pretenses as true and being deceived thereby gave to the said John P. Callaghan Company and the said John P. Callaghan Company did then and there, knowingly and designedly, by color and means of said false pretense obtain from the said Terminal Construction Corporation money to the value of $35,221.32, of the goods and chattels of the said Terminal Construction Corporation with intent to cheat and defraud the said Terminal Construction Corporation."

Defendant attacks the indictment on the ground that it is too vague and indefinite in that it is impossible to determine whether the alleged pretenses committed were a single act or a series of acts. Its contention is that it is impossible to determine whether it is charged with obtaining one lump sum of money by several different false pretenses

or whether several sums of money were obtained by several different false pretenses. Defendant relies upon State v. Alfin , 129 N.J.L. 196 (Sup. Ct. 1942); State v. Fromm , 65 N.J. Super. 30 (App. Div. 1961), and State v. Torrance , 41 N.J. Super. 445 (App. Div. 1956), certification denied 23 N.J. 59 (1956).

The State's position is that between January 4 and January 31 Callaghan delivered the concrete and on February 9 the defendant received a final remittance for the concrete delivered in January, the false pretense thereby being consummated on February 9 and, clearly, the indictment charges but one false pretense. It contends that the "delivery of each load of concrete could not be construed to be a separate crime but merely a series of acts establishing a predicate for the crime which was substantially consummated"; and relies on State v. Thompson , 56 N.J. Super. 464 (App. Div. 1959), where an embezzlement charge was based on the defendant's failure to deposit monthly rentals and not on each collection from the tenants.

Only one offense may be charged in a count of an indictment. State v. Weleck , 10 N.J. 355, 375 (1952); State v. Bolitho , 103 N.J.L. 246, 263 (Sup. Ct. 1927), affirmed 104 N.J.L. 446 (E. & A. 1927). But an indictment is not duplicitous if it charges several acts relating to the same transaction which together constitute one offense. State v. Witte , 13 N.J. 598, 605 (1953).

The fundamental requirement of an indictment is to inform the person charged of the nature of the offense lodged against him so he may adequately prepare his defense and at the same time be protected against another indictment for the same offense. State v. Borrell , 18 N.J. 16, 21 (1955); State v. Winne , 12 N.J. 152, 178 (1953). It is the court's opinion that the indictment fulfills this requirement.

The indictment informs defendant that on February 9, 1960 and on divers dates between January 4 and January 31, the defendant falsely represented that it had

delivered concrete in accordance with the contractual specifications. In reliance on these representations, Terminal paid Callaghan the sum of $35,221.32. The indictment clearly charges the defendant with a scheme to defraud Terminal and each act alleged is a part of that scheme. By the nature of the operation, i.e. , the numerous deliveries of concrete required to construct a project the size of the Military Park garage, Callaghan is reasonably informed as to the nature of the State's charge.

An analogous situation arose in State v. Ajamian , 9 N.J. Super. 143 (App. Div. 1950). In that case the indictment charged the defendant, as agent for one Isabelle Panian, entrusted with the care of moneys on her behalf, fraudulently converted her moneys to his use in specified amounts on dates between December 9, 1946 and February 28, 1947 in the sum of $14,679.10. The court held that several acts of embezzlement could be included in a single count, stating that "an unwarranted burden would be placed upon the State if it were obliged under the circumstances to meet any formal requirement of alleging and establishing the precise dates and amounts of the individual defalcations." The court stated at page 146:

"However, assuming the validity of the defendant's position that the indictment should have, as well it might have under the particular circumstances presented, embodied separate counts rather than a single count, we fail to find cause for reversal. In either event the sum of evidence would have been identical and the defendant would have been found guilty of embezzlement; * * * The indictment sufficiently set forth the facts, the defendant was afforded full opportunity to defend, and any error based on the failure to set forth separate counts did not affect his substantial rights or prejudice him in maintaining his defense upon the merits. [Citing cases]"

In State v. Witte , 13 N.J. 598 (1953), the defendant was convicted of nonfeasance in his office as chief of police of the Borough of Lodi. The indictment was in nine counts, count 1 charging the defendant for failing to take proper law enforcement action against a gaming house

which was continuously maintained from January 24, 1949 to and including March 31, 1949. The court stated at page 605:

"* * * Where an indictment charges 'one continuous offense, constituted both by a series of acts and by a duration of time,' and 'the time and the acts are properly proved, the offense is single and indivisible.' [Citing cases]"

Although that case is distinguishable in that a nonfeasance in office is by nature a continuous offense, the language is applicable to the indictment here in that the times of delivery are all set out as being in January -- namely between January 4, 1960 and January 31, 1960, and the payment of $35,221.32 on February 9, 1960. Thus, we have a series of acts -- within a duration of time and a single ...


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