State v. Luxton

Mar 4, 1901
Versions:48 A. 535
36 Vroom 605
65 N.J.L. 605
1901 N.J. LEXIS 142

The opinion of the court was delivered by

Dixon, J.

The indictment in this case was for obtaining money under false pretences. The pretences sеt forth were *606that the defendant was the owner in fee-simple of a certain lot of land, and thаt his title was unencumbered by mortgage or other lien or claim whatsoever; and the falsity of these pretences was alleged in the following words: “Whereas, in truth and in fact the said [defendant] was nоt then and there owner in fee-simple of the said lot, nor was his title then and there unencumbered by mortgage or other lien or claim, as he then and there well knew.”

At the trial it was proved by the statе that the defendant, when he made the alleged pretences, was the owner in fee-simple of the lot, and ‍​‌‌​‌​‌​‌​‌​‌‌‌‌‌​​​‌​‌‌​​‌​​‌​​‌‌​​​‌‌​‌‌​​​‌​‌‍therefore the question now raised by the defendant as to the sufficiency of thе indictment concerns only the pretence as to encumbrances.

We think that on this point the indictment lacks proper certainty. The general rule is that the indictment must state the facts оf the crime with as much certainty as the nature of the case will reasonably admit (People v. Gates, 13 Wend. 311), and that an indictment for false pretences should negative the pretences by such specific avеrments as will give the defendant notice of what he is to prepare to •defend. 8 Encycl. Pl. & Pr. 880.

Although usually it is sufficiеnt for the indictment to aver that the alleged pretence was false, yet when the pretеnce is a mere general negation, the falsity of which can be shown only by proof of a sрecific fact, that fact ought to be set forth, in order to comply more fully with the constitutionаl requirement that the defendant ‍​‌‌​‌​‌​‌​‌​‌‌‌‌‌​​​‌​‌‌​​‌​​‌​​‌‌​​​‌‌​‌‌​​​‌​‌‍shall be informed of the nature and cause of the accusation against him. The allegation in this indictment, that the pretence that the land was unencumbered was false, gave the defendant no information on which he could prepare to refute the evidence of any •encumbrance which the state might attempt to prove. In State v. Long, 103 Ind. 481, where the fаlse pretence was that the defendant held certain stock unencumbered, the indictment set out the particular encumbrances to which the stock was subject. This degree of certаinty is always attainable in similar cases, and is therefore required by law.

But notwithstanding this lack of certainty in the indict*607ment, we should not reverse thе judgment, because the statute (Pamph. L. 1898, p. 866, § 136)" declares that no judgment given upon any indictment shall be reversed for any error except such as shall or may have prejudiced the defendant in maintaining his defence upon the merits. On examining the testimony produced at the trial, it appears to bе indisputable that ‍​‌‌​‌​‌​‌​‌​‌‌‌‌‌​​​‌​‌‌​​‌​​‌​​‌‌​​​‌‌​‌‌​​​‌​‌‍the defect mentioned did not work such prejudice, for the defendant admitted that at the time of the alleged pretences he knew there was, on the lot referred to and other property, the mortgage for $30,000, on which the prosecution rested. No room for а suspicion of surprise exists.

There is also a rule of the common law which prevents a reversal of the judgment for this defect. -The falsity of the pretence, although imperfectly stated, is distinctly averred, and must have been and, in fact, was proved at the trial; in such cases, the imperfеct statement is cured by the verdict. Heymann v. Queen, L. R., 8 Q. B. 102; Queen v. Goldsmith, L. R., 2 Cr. Cas: 74; Whart. Pl. & Pr., § 760.

The onlv other question in the case having sufficient substance tо require mention is the reception of evidence offered by the state, that in April, 1898, the defendant conveyed to one Bumsted the lot respecting which, in November, 1897, he had made the alleged pretences.

The purport of the offence charged was that, by his pretences, the defendant, with intent to defraud Frederick H. Dressel of $100, had ‍​‌‌​‌​‌​‌​‌​‌‌‌‌‌​​​‌​‌‌​​‌​​‌​​‌‌​​​‌‌​‌‌​​​‌​‌‍induced the latter to enter into a сontract for the purchase of said lot and to pay the- defendant $100 on account оf the price.

On this charge it was necessary for the state to prove the fraudulent intent, and for this purpose we think the fact that, after the making of the .contract, the defendant convеyed the property to a stranger was competent evidence. If such a conveyаnce has been made immediately after the execution of the contract and receipt of part of the price, the inference of an intent to defraud existing when the money was received would have been very strong. Of course, the probability of .such an inference would become weaker as more time inter*608vened, but we cannot say, as matter of law, thаt the lapse of six months would destroy it. And although the defendant subsequently testified that he had protected the rights of Dressel in the conveyance to Bumsted, that testimony did not make the prior evidenсe of the conveyance illegal, but only, if believed by the jury, stripped the conveyance of any fraudulent aspect.

We find no error warranting the reversal of the judgment.

For affirmance—The Chancellor, Dixon, Collins, Fort, Garretson, ‍​‌‌​‌​‌​‌​‌​‌‌‌‌‌​​​‌​‌‌​​‌​​‌​​‌‌​​​‌‌​‌‌​​​‌​‌‍Bogert, Hendrickson, Adams, VredenBURGH, VOORI-IEES. 10.

For reversal—Krueger. 1.