Burns v. People, 59 Barb. 531

Burns v. People

59 Barb. 531 | N.Y. Sup. Ct. | 1871

Lead Opinion

Miller, P. J.

The first objection urged to the indictment is, that it is defective because it does not state the *542number of-the Inspectors of the election to be held. It alleges that “ the board being then and there duly authorized to administer an oath,’'’-Ac., and that Burns being sworn, &c., did commit perjury. XJXthink that the general allegation of jurisdiction to administer the oath is sufficient, without stating in detail the nam\es or the number of the inspectors who constituted the 'board. Even if. there might be some doubt upon the question whether all the facts showing jurisdiction should be specifically stated, if'this point was presented for the first time, y<qt the authorities hold, as I understand, that a general Averment of jurisdiction is sufficient, in an indictment for perjury. In The People v. Phelps, (5 Wend. 9,) it was held that in an-indictment for perjury, by an, insolvent debtor, on\the oath taken by him in presenting his petition, &e., it is riot necessary to set forth the facts to show jurisdiction, as . done in civil cases; but that it is enough to aver, gen-x erally, that the officer had lawful and competent authority to administer the oath. The specific objection was takeé® that the indictment was defective in this respect, and it was held that an averment of the court’s authority to administer the oath was sufficient. In Campbell v. The People, (8 Wend. 636,) it was decided that in an indictment for perjury, against a person voting at an election, an averment that he was sworn by and before the board of inspectors, is a sufficient averment that the oath was administered by the board, and that it would be enough to allege that-he took the oath before the board, they being duly authorized to administer it. - Although thexdistinct point now made was not taken, yet the case involved the very question which now arises ; and the form of the indictment is similar to the one in the case at bar, in its leading characteristics. In The People v. Tredway, (3 Barb. 470,) it was held that it was not necessary to set forth facts, in the indictment, sufficient- to show that the officer who entertained the proceedings had jurisdiction *543to administer the oath; and the same principle was asserted, and the cases last cited followéd. These authorities are conclusive.

The second objection, that the indictment does not state that the inspectors were acting for the second ward, comes within the same principle, and must fall with' the first one.

As to the third objection, to the effect that the indictment does not show the manner and form in which the oath was administered, I think it is not well taken. It avers that Burns was “ duly sworn, and did take his corporal oath;” and I think this embraces all that is required in the statute. It means that Burns was sworn according to the law applicable to such a case. It was not necessary to specify the particular mode in which the prisoner was sworn, or the particular oath which he took; and á general averment that he was duly sworn is enough. (See Tuttle v. The People, 36 N. Y. 436, and cases cited.)

The fourth objection—that the indictment does not show upon its face that the oath required by the statute was administered to the defendant, or that he falsely swore to any part thereof—is also unavailable. The indictment avers that he was duly sworn; that is, lawfully, and according to the statute applicable to such a case; that he took his corporal oath before the board; which means that the proper oath was administered to him; and that he falsely swore that he had not voted. In Campbell v. The People, it was held that it was not necessary to set out the whole oath; and that such parts as are alleged to be false, and are material, in a given case, are all that is requisite. The portion of the indictment embraced in the fourth objection was within this rule, and entirely sufficient.

The remarks made as to the first and second objections are applicable to the fifth. The averment that a general election was held pursuant to the laws and constitution of the State, before a board ■ of inspectors legally constituted *544and authorized according to law, was sufficient, I think, without stating that the place had been legally appointed.

The sixth objection relates to the assignment of the perjury. The false oath alleged was that the prisoner had sworn that he had not voted at the election. The assignment was that he had voted previously at the fourth ward, “at the house of Thomas L. Wasson, in said ward,” without stating that he voted before a board of officers duly constituted and authorized, according to law, or that any lawful election had been appointed, or was held, at the place named. The rule is, that assignments of perjury must be made by special averment negativing the oath; a general allegation that the defendant swore false, is not enough. (1 Arch. Crim. Plead. 538, § 297, 4th Am. ed.) If the assignment had stated that the defendant had previously voted at the election, clearly it would not have been sufficient; as such an averment is not specific, and does not show that he had voted at an election unlawfully held, and does not furnish the defendant full information as to the character of the charge made. If the defendant had voted at the place named, and there was no authority to, hold the election there, and no officers authorized by law to receive the vote, clearly the oath afterwards made would not constitute a willful perjury. The assignment of the perjury is too general and uncertain, and is not explicit enough, to support itself or to show that the defendant committed the crime. (Clark v. The People, 2 Lansing; 329, 331.) It is no answer to this view of the subject to say that he could not have voted as alleged at the place named, unless it was the legally appointed and duly constituted place for holding the election, or unless a legal election was held there. In the absence of any averment to that effect, it is not to be inferred, I think, that the election was lawfully held at the place named. It may have been held there without authority, and in violation of law, and as the contrary does not appear, the indictment does *545not present an intelligible story from which it appears that the crime of perjury has been committed. It is clearly defective in this respect, and for this reason cannot be upheld. The defect is a substantial one, and not merely formal, and is not obviated by the statute of jeofails. (1 R. S. 728, § 52.) The indictment does not contain the substance of the offense, with the circumstances necessary to render it intelligible, and inform the defendant of the allegations against him. (5 Wend. 20. 8 Barb. 552. 22 N. Y. 150. 6 id. 52.)

By reason of the defect named, the conviction must be reversed.

Parker, J., concurred.

Concurrence Opinion

Potter, J.

I concur with the presiding judge in his opinion, except as to the sixth objection, upon the question of the assignment of perjury. The occasion, the time and place where the oath was taken, the authority of the officer to administer the oath, and the matter sworn to, were all well alleged, and fully and sufficiently assigned. The oath administered was prescribed by statute; it contained multifarious matters, but one distinct particular of which was charged as being false, to wit, that you, have not voted at this election. And the falsity was charged in this, to wit, that the said Barnard Burns had previously, and on the same day, voted at the election aforesaid; and then, with more particular specification, stated the ward, place in the ward, &e., for the officers aforesaid. This assignment is as broad, and more specific than the statute which creates the offense. The character of the election was fully stated; it was an election known to the law, and one at which the crime of perjury could be committed. It was an election at which the voter could vote but once, and it was the voting at the election more than once, with the falsity of the oath, that constituted the crime. At any *546other election, or before any body unauthorized to receive his vote, it is true no crime would have been committed, and no offense could be made to sustain the indictment but a previous vote at the election, to wit, the election that had been described. This was the offense charged. The oath, and the matters it contained, having been sufficiently alleged, the only point of law is, was the falsity of this oath sufficiently stated ? Upon this point I cannot concur in the opinion just read. As to the allegation of falsity, I understand the rule to be, that it must be set forth in such a manner “as to afford the defendant information of what is intended to be proved.” This was sufficient, even before our statute of jeofails. What was the crime? Having previously voted at that election? Certainly not. The previous voting might have been lawful. What was the oath ? That he had not previously voted; and swearing to this was the crime; and this is wThat the indictment charged. Of what does the indictment inform him ? That he had so previously voted. And it goes further, and beyond this, and informs him of the very place in another ward of the same city where he had so voted, at that election; that is, the election which was well set forth. This is more specific than the terms of the law; more specific than the terms of the oath. Of what sensible importance is it that the prisoner should be informed that the persons who received his first vote, were duly authorized to receive it? The crime charged did not consist in voting the first time; that was no part of the offense necessary to be described. It was not the substance of the offense. The legal presumption is that his first vote was a legal vote. Whether it was, or not, was not an issue on the trial. The defendant is not permitted to deny it; the people were not bound to prove it to have been legal. When they proved that he had personally voted at the election, the burden was upon the defendant to impeach its validity. He had assumed it to be legal by *547voting. The crime was, in swearing he had not before voted at that election; and this was fully set forth. It may be assumed that he had a right to' vote where he first voted. The people have not, by their indictment, complained of that vote. It does not lie in the mouth of the prisoner to say he had no right to vote there. That fact has no materiality or importance, beyond the fact of showing that his oath was false. The fact that he had voted, is sufficiently stated; and it gave the defendant notice that his perjury was in swearing that he had not so voted. There are two rules of pleading that sustain this assignment of perjury as contained in the indictment. First. In statute offenses, if the statement be of a particular fact, negativing that fact is sufficient; and this rule is laid down as to pleading, in perjury. (2 Arch. Crim. Plead. 966.) Second. That the falsity must be set forth in such a manner as to afford the defendant information of what is intended to be proved; and this is held to be sufficient. Both these rules have been observed in this case. There is a class of cases found in the books, which lay down the rule given in the opinion read; but they can be distinguished, and are distinguished, by this: Where the false statement or words of the oath ássigned, is general, it is not sufficient to make the general allegation that such statement was false, but the particulars in which it is false must be alleged. In such case they are of the substance, and are therefore material. But where the perjury consists in a single or particular statement, it is sufficient to assign, generally, that such particular statement is false. But the case is otherwise where the false words assigned are particular, or specific; and in such case the assignment may be general, if the general words bring home to the defendant’s knowledge the certainty of what is to be proved. ■ So the rule is laid down by Qomyn, that general words are sufficient where the certainty lies within the defendant’s knowledge, (Dig. Pleader, 26;) and in The People v. Phelps,

*548[Third Department, General Term, at Elmira, April 4, 1871.

(5' Wend. 120,) it was held sufficient,.if all the circumstances necessary to describe and render the charge intelligible in its legal requisites, appear on the face of the proceeding, and inform the defendant • of the charge against him. (Biggs v. The People, 8 Barb. 551.) The defect complained of here could not tend to prejudice the prisoner. (The People v. Powers, 6 N. Y. 50. Sanchez v. The People, 22 id. 150.) The assignment of falsity in this case, gave the defendant full notice of the particulars in which his oath was false; giving time, place, and voting at the election aforesaid. I have been compelled to come to the conclusion that this assignment was full and sufficient. Besides, the technicalities of pleading, in indictments, are inapplicable, under our Bevised Statutes. Objections can only be taken to defects of substance, not to matters of form, unless they tend to the prejudice of the defendant. That cannot be alleged in this case. The indictment contains all the substance of the offense, with all the circumstances necessary to render it intelligible to the defendant, as to what was to be proved against him. I think it is good. But if these objections had merit in them, they are unavailing after judgment; especially after a plea of guilty;

I think the judgment should be affirmed..

Conviction reversed.

Miller, P. J., and Potter and Parker, Justices.]