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State v. Drake

Decided: June 13, 1963.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRED U. DRAKE, DEFENDANT-APPELLANT



Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.

Freund

Defendant was granted leave to appeal from a County Court order denying his motion to dismiss four indictments returned against him by the Mercer County grand jury. R.R. 3:5-5(b)(6).

The indictments charge defendant with the violation of N.J.S. 2A:111-1, which reads as follows:

"Obtaining money, property, etc., by false pretense

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."

In existence at the time of the alleged offenses contained in the indictments was N.J.S.A. 43:21-16(a) (L. 1952, c. 187, p. 661 as amended), which in pertinent part is as follows:

"Penalties; investigating staff

(a) Whoever makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this chapter (R.S. 43:21-1 et seq.), or under an employment security law of any other State or of the Federal Government, either for himself or for any other person, shall be liable to a fine of $20.00 for each offense, to be recovered in an action at law in the name of the Division of Employment Security of the Department of Labor and Industry of the State of New Jersey or as provided in subsection (e) of section 43:21-14, said fine when recovered to be paid to the unemployment compensation auxiliary fund for the use of said fund; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense. Any penalties imposed by this subsection shall be in addition to those otherwise prescribed in this chapter (R.S. 43:21-1 et seq.)."

In summary, the indictments allege that defendant, from 1958 through 1960, knowingly and with intent to cheat and defraud the State of New Jersey, obtained negotiable checks from it through the Division of Employment Security, by false statements, representations, writings and pretenses on various occasions and received in the aggregate the sum of $1,295, contrary to the provisions of N.J.S. 2A:111-1.

To obtain these benefits defendant fraudulently stated that he was unemployed and was not receiving any wages. In fact, Drake had been an employee of Schanck and Field, grain and straw processors, for 25 years. He also held the position of Clerk of Washington Township since 1933, and was a local zoning officer and building inspector. He received a salary from each position. When the indictments were returned by the grand jury on June 27, 1961, Drake was suspended from his duties as an employee of the local township.

Reduced to its essentials, N.J.S. 2A:111-1 provides that a person who fraudulently obtains money or property by means of false representations is guilty of a misdemeanor. N.J.S.A. 43:21-16(a) imposes a fine upon an individual who makes false statements in connection with obtaining unemployment benefits. The sole question on this appeal is whether the State is precluded from prosecuting defendant under indictments alleging a violation of N.J.S. 2A:111-1 upon facts which would also constitute a violation of N.J.S.A. 43:21-16(a). Defendant argues that N.J.S.A. 43:21-16(a) is a penal statute and should be strictly construed against the State, and where a conflict exists between a general statute and a later more specific statute, the latter prevails. Defendant ...


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