State v. BleichnerState v. Bleichner
Lawrence G. Bleichner and William J. Sheehan were jointly indictеd, and at the trial in the Camden County Court the defendant Bleichner was convicted and defendant Sheehan was acquitted. Defendant Bleichner appeals from the judgment of conviction.
The indictment charged that Lawrence G. Bleichner and William J. Sheehan “being the contractors engaged to erect a certain dwelling house, to wit, a bungalow, on Walnut Street, Audubon, New Jersey, for one Edgar A. Heubel, and being entrusted as such contractors with the sum of ($2,930.00) two thousand nine hundred and thirty dollars, they, the said Lawrence G. Bleichner and William J. Sheеhan, did unlawfully and fraudulently convert the said sum of two thousand nine hundred and thirty dollars ($2,930.00) to their own use, with intent to cheat and defraud the said Edgar A. Heubel, contrary to the provisions of
“All moneys rеceived by a contractor from the owner or mortgagee of real estate or any leasehold or other interest therein, while a building is being erected, constructеd, completed, altered, repaired or having an addition made thereto, are hereby declared to be trust funds in the hands of such contractor to be applied tо the amount of all claims due or to become due and owing from such contractor to all persons furnishing labor or materials to him for the erection, construction or сompletion of the building or any alteration, repair or addition thereto, and any other reasonable and necessary charge in connection with the carrying on and completion of the work on the building. Any contractor or any officer, director or agent of such contractor who pays or consents to the appropriаtion of such funds for any other purpose prior to the payment of all claims and charges for the payment of which such funds constitute a trust fund as above provided, shall be guilty of a misdemeanor.”
On May 5, 1948, Edgar A. Heubel, the complaining witness, and Margaret, his wife, called at the defendants’ place of business in Camden, in answer to an advertisement. There they met the defendant Sheehan, who told them that his partner Bleichner was the “contractor and builder in this organization” and that he would be in soon. When Bleichner came in, they discussed with him thе building of a home.
When the agreement was signed, Bleichnеr informed the Heubels that the house could be built within ten to twelve weeks. When the Heubels complained from time to time about the failure to start the construction, Bleichner gave various excuses. After the last payment by the Heubels in September, 1948, the defendants moved from their place of business and left no forwarding address. When the Heubels finally located them, the defendants said they would start immediately on the construction of the building. Shortly thereafter a cellar was dug, but nothing further was done on the construction. The parties stipulated that the value of all work done was $500. The demand of the Heubels for the return of the money paid was not complied with.
In his charge to the jury, the trial judge stated:
“If, on the other hand, you should find, after a consideration of the testimony in this case, that Bleichner and Sheehan were partners, and were in the contracting business, and that as a result of such relationship or association this man Heubel paid to them the sum of $2,930 for the erection and construction of a building and that they
failed to erect or construct the building, and those facts have been established to your satisfaction beyond a reasonable doubt, then I say to you you should return a verdict of guilty as against both of these defendants * * * you can find one guilty and the other innocent, or you may find both innocent, or, of course, you can find both guilty, depending on your consideration of the evidence submitted.”
The defendant Bleichner objected to this portion of the сourt‘s charge on the ground that the acceptance of moneys by a contractor for the erection or construction of a building, and the failure to erect оr construct such building, does not of itself constitute a crime under the statute.
The defendant contends that the trial court committed reversible error in its charge, and we agree. The crime sought to be charged in the indictment was a violation of
We also agree with the defendant‘s contention that the court erred in denying his motion to dismiss the indictment. Every constituent elеment of the crime charged must be set forth in the indictment and not left to intendment. State v. Solomon, 97 N.J.L. 252 (E. & A. 1922). It is fundamental, of course, that an indictment, to be effective as such, must set forth the constituent elemеnts of a criminal offense; if the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based, or if the facts alleged may all be true and yet constitute no offense, the indictment is insufficient. 27 Am. Jur., Indictments and Informations, § 54. A constituent element of the offense under this statute is that the moneys were received by the contrаctor from “the owner or mortgagee of real estate or any leasehold or other interest therein” and this indictment, in failing to state that the moneys involved were recеived from such an owner or mortgagee, fails to state a constituent element of the crime. Also, the payment or consent to the appropriation of such moneys by the contractor for other purposes is not necessarily a crime under the statute. A constituent element of the crime is that the contractor pay or consent to the appropriation of such funds for any other purpose “prior to the payment of all claims and charges for the payment of which such funds constitute a trust fund” under the statute. The indictment fails to state this constituent element of the crime.
The judgment is reversed.