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State v. Allen

Decided: April 18, 1968.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELIZABETH ALLEN, DEFENDANT-APPELLANT



Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d. Labrecque, J.A.D. (concurring). Collester, J.A.D. (dissenting).

Conford

Defendant appeals from a conviction of the crime of obtaining property under false pretenses. The indictment in substance presented that defendant, intending to cheat and defraud Sears Roebuck & Company ("Sears" hereinafter), falsely represented herself to Sears to be "one Jane Blackwell, the wife of one Joseph Blackwell," and that by means of that false pretense she obtained from Sears a certain portable television set with the said fraudulent intent.

The statute here allegedly violated was N.J.S. 2 A:111-1. For present purposes it should be emphasized that it requires that the false statements shall have been made with intent to cheat or defraud the person from whom the property, etc., is obtained and also that the false statement shall have been the "means" by which the property is obtained, i.e., that the defrauded person shall have

relied upon the false pretenses in parting with the property. For the essentiality of the element of reliance see State v. Kaufman, 31 N.J. Super. 225, 229 (App Div. 1954), modified on other grounds, 18 N.J. 75 (1955); State v. Lamoreaux, 13 N.J. Super. 99, 103 (App. Div. 1951); State v. Hubschman, 133 N.J.L. 520, 522, 523 (Sup. Ct. 1946); State v. Thatcher, 35 N.J.L. 445 (Sup. Ct. 1872). The jury must be shown "that the unlawful purpose would not have been effected without the influence of the false pretense," although this if shown will be sufficient notwithstanding the existence of other influences cooperating to induce the injured party to part with his property. Id., at pp. 448-449.

Defendant contends there was error in denying the motion for acquittal at the end of the State's case for failure of proof of essential elements of the crime charged. On review of the denial of such a motion the sufficiency of the State's case cannot be aided by what is adduced on defendant's case, State v. Fiorello, 36 N.J. 80, 86-87 (1961), although the State is entitled on such a motion to the benefit of all of its favorable testimony and the favorable inferences which a jury might reasonably draw therefrom. Id., at p. 87.

The State's proof was as follows. On May 22, 1964 defendant Elizabeth Allen accompanied by a man, visited an outlet of Sears in Perth Amboy. She purchased a portable television set ($139.95), using a Sears credit card (charge plate) imprinted with the name Joseph Blackwell. Defendant signed that name on the sales slip. She was not asked by the salesman, one Hamerling, to identify herself, and she did not volunteer the information, but she gave Blackwell's address on request. She was allowed to take the set after the salesman phoned the credit department and obtained approval. The store ordinarily relied upon possession of the card, an authorized signature and verification from the credit department of the address given by the card holder. Hamerling also testified the store "normally issued

two cards for husband and wife's use. It can be issued in one name with two authorized signatures."

Defendant returned to the Perth Amboy store the next day, May 23, 1964, to exchange the television set purchased the day before for a different (and more expensive, $149.65) model. She said the first set's reception was unsatisfactory. She was accompanied this time by two men.

George R. Smith testified for the State that it was he, a salesman and department manager of Sears, who processed and handled the exchange transaction. He said:

"Well, first of all, she identified herself to me as Mrs. Blackwell and she gave me the receipt which she had validated the day before and after verifying the fact that the set was the proper number and the price was correct, I proceeded to make out a refund check. In other words, I refunded the money on the original sale and then she picked an alternate set for which I rewrote another sales slip."

However, it is clear that the transaction did not actually involve any cash refund. The defendant simply got a second set in place of the first, and there was a net increase of $9.70 in the debit on the Joseph Blackwell charge account.

Smith testified that defendant signed for the exchange; she wrote "Joseph Blackwell" on the new sales slip after presenting the Blackwell credit card which was used to make a charge plate imprint on the new sales slip. Smith echoed Hamerling's testimony to the effect that it was permissible and common for the wife of a charge account holder to sign for a credit transaction -- either by signing her husband's name (the named charge account holder) or her own name. The signature as imprinted on the plate is preferred.

Charles Moser, the Sears credit fraud investigation manager, was the State's last witness. He testified that early in 1964 a charge account application bearing the name "Joseph Blackwell" was received, and two credit cards were promptly issued in that name (each card with the same name -- one card to be used by the applicant's wife) and sent to the

applicant's address. "Store policy" is that only the named individual and his wife may use the card.

A credit investigation of Joseph Blackwell, 151 Monroe Avenue, Rahway, was commenced by Moser in June 1964, as nothing had ever been paid on the account in question although several articles had apparently been purchased thereon. In the course of his investigation Moser visited the Rahway address in August 1964 and was greeted at the door by defendant, who, he claimed, ...


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