Halpern, Matthews and Bischoff.
Defendants Angelo's Motor Sales Inc., now known as Universal Imports Limited, Inc. (corporation), and Angelo Parmigiani, the president and principal stockholder of the corporation (Parmigiani), appeal judgments of conviction after a jury trial for offenses hereinafter mentioned. A codefendant, Gregory Rue, has not appealed judgment of conviction entered against him.
The record discloses that the jury could have found that during the month of August 1969 William E. Mullins Jr. visited the premises of the corporation to purchase a new car and spoke with Gregory Rue, a salesman employed by the corporate defendant. During the discussion with Rue, Mullins came to realize that a new car would be too expensive. Rue then showed him a 1969 Austin Healey Sprite. Rue represented that the Sprite was a new "demonstrator" and, therefore, was priced lower than an entirely new car. An order to purchase the Sprite was signed by Mullins on August 13, 1969 and title was transferred from the corporation to him on August 22, 1969.
After the purchase of the car, certain problems arose with respect to it. The father of the purchaser went to the premises of the corporation and asked for the warranty book. When he eventually received the warranty book, he noted that it indicated that one Ronald A. Boyd was the original purchaser of the Sprite. The father returned to the corporate premises and demanded an explanation. He was told on two occasions by Rue and Parmigiani that Boyd was a salesman employed by the corporate defendant and that the title to the Sprite had been placed in Boyd's name for corporate reasons. Further investigation by Mullins revealed that the car was not in fact a new demonstrator but rather a used car, having been previously sold to and repossessed from Boyd. Negotiations to resolve the dispute could not be resolved and a civil action was instituted by Mullins against Angelo's Motor Sales Inc. and the salesman Gregory Rue.
After the institution of the action interrogatories were propounded by Mullins' attorney to the corporate defendant. Answers to the interrogatories were prepared by the attorney for defendants in the civil action, and were signed by Parmigiani as president of the corporation. The interrogatories contained a certification in lieu of oath, as provided by R. 1:4-4(b). Two of the answers to those interrogatories are the subject of the false swearing counts of the indictment.
The civil action was settled. The Sprite was returned to the corporation and the entire purchase price was refunded to Mullins.
Parmigiani and Rue were summoned before a special Mercer County grand jury during November 1971. Both testified. On December 3, 1971 the grand jury returned a six-count indictment charging the corporation, Parmigiani and Rue with the following offenses: Count one charged the corporation, Parmigiani and Rue with conspiracy to defraud Mullins of money by means of false pretenses, by falsely pretending to Mullins that the Sprite was a new demonstrator
when in fact the automobile was used. N.J.S.A. 2A:111-1. Four overt acts committed in execution of the conspiracy were alleged. N.J.S.A. 2A:98-1 and 2. Count two charged the corporation, Parmigiani and Rue with obtaining money by false pretenses, N.J.S.A. 2A:111-1, and representing to Mullins that the automobile was a new demonstrator, when in fact it was used, having been previously sold to Boyd and subsequently repossessed. Count three charged Parmigiani with false swearing, N.J.S.A. 2A:131-4, in that he gave false answers to interrogatories material to a civil action pending in the Chancery Division between Mullins, as plaintiff, and the corporation and Rue, as defendants, concerning the sale of the car in question. The alleged false swearing was that Parmigiani answered that the mileage on the automobile at the time of its sale was "approximately 1,911 miles" when in fact the mileage was greatly in excess of that figure. Count four charged Parmigiani with false swearing, N.J.S.A. 2A:131-4, in that he answered in the interrogatories material to the same civil action that the automobile's mileage reading on its odometer had not been changed by the corporation prior to its sale to Mullins. Count five charged Rue with perjury before the grand jury on November 12, 1971. N.J.S.A. 2A:131-1. The claimed perjury was that Rue testified that he did not tell Mullins that the car was a new demonstrator and that he had told him that it was a repossessed car. Finally, count six charged Rue with perjury before the grand jury on November 5, 1971. N.J.S.A. 2A:131-1. The claimed perjury was that Rue denied under oath that he met with two representatives of the Better Business Bureau in December 1969.
After a motion to quash the indictment was denied the trial commenced on June 4, 1972. The factual dispute at the trial involved the questions of whether Rue represented to Mullins that the car was a new demonstrator, and whether the mileage had been turned back prior to the sale. Motions to dismiss all counts of the indictment were made prior to
jury selection, at the conclusion of the State's case, and at the conclusion of defendants' case. The motions were denied. A motion to sever the false swearing counts against Parmigiani from the other charges was denied. A similar motion with respect to Rue's perjury counts was also denied. At the conclusion of the State's case, a motion for acquittal on the perjury charge contained in count six against Rue was granted by the trial judge because of a variance between the grand jury ...