A motion was made by the defendant herein for an order to dismiss the indictment on the ground that it does not set forth a crime under the laws of the State of New Jersey.
The indictment charges the defendant with obtaining money under false pretenses from one James Young, contrary to the provisions of N.J.S. 2A:111-1. The indictment reads as follows:
"The Grand Jurors of the State of New Jersey, for the County of Bergen, upon their oaths present that
on or about, during and between the 1st day of October, 1958 to on or about the 27th day of October, 1958, in the Borough of Rutherford, in the County of Bergen aforesaid, and within the jurisdiction of this Court, intending to cheat and defraud JAMES YOUNG did then and there unlawfully, knowingly and designedly falsely represent and pretend to the said JAMES YOUNG that he the said MATTHEW J. DONOHUE, JR. could secure and obtain the admission to the Louisiana Bar for the said JAMES YOUNG without his taking a legal and proper examination and test as required by law, and that
upon said admission the said JAMES YOUNG would have the status of an Attorney at Law and could practice law in the State of Louisiana, whereas in truth and in fact as the said MATTHEW J. DONOHUE, JR. then and there well knew he the said MATTHEW J. DONOHUE, JR. could not secure and obtain the admission to the Louisiana Bar for the said JAMES YOUNG without his taking a legal and proper examination and test as required by law, as he the said MATTHEW J. DONOHUE, JR. then and there so falsely, knowingly and fraudulently represented and pretended; and that by means of the said false representations and pretenses, the said JAMES YOUNG being deceived thereby, the said MATTHEW J. DONOHUE, JR. then and there unlawfully, knowingly and designedly did obtain of and from the said JAMES YOUNG the money of the said JAMES YOUNG to the amount and value of $4,200.00 with intent to cheat and defraud the said JAMES Young thereof, contrary to the provisions of N.J.S. 2A:111-1, and against the peace of this State, the government and dignity of the same."
The defendant contends that the allegations in the indictment taken to be true for the purpose of this motion do not set forth a false promise or a false statement or representation but rather a claim of ability to produce a certain result and therefore no tangible evidence of an attempt to deceive. Defendant further contends that in order to justify a claim that the statute was violated, it is necessary that the alleged false pretense or promise be not absurd and incredible in itself. State v. Vanderbilt , 27 N.J.L. 328 (Sup. Ct. 1959).
It will be observed from a reading of the indictment that part of the alleged false representation is "that he the said Matthew J. Donohue, Jr. could secure and obtain the admission to the Louisiana Bar for the said James Young without his taking a legal and proper examination and test as required by law."
The indictment makes it abundantly clear that if the allegations of the indictment are true both the defendant and James Young were engaged in a conspiracy to violate the laws of the State of Louisiana or to corrupt some person or persons for the purpose of having the said James Young illegally admitted to the bar of the State of Louisiana.
The question then arises as to whether or not under these circumstances one conspirator can be ...