111 N.Y.S. 133 | N.Y. App. Div. | 1908
Lead Opinion
This appeal is from a judgment convicting the defendant of the crime of perjury, and also brings up for review certain orders, denying a motion to dismiss the indictment, overruling a demurrer thereto, and denying motions for a new trial and in arrest of judgment.
The indictment charges, in substance, that on the 11th day of May, 1906, there was pending before the grand .jury of the county of Mew York “a certain investigation and inquiry for the purpose, among other things, of ascertaining whether officers or employees of any description of life insurance companies in this State have lately violated in the County of Mew York the criminal laws of the State of Mew York and of inquiring into all crimes by any such officers or employees committed or triable in the said County; ” that the defendant, who for some time prior to April 1, 1906, had been a vice-president of the Mutual Life Insurance Company of Mew York, was called and sworn as a witness and that “ being so sworn as aforesaid, it then and there became and was material at and upon the said investigation and inquiry whether a certain bank account in a certain bank at Dobbs Ferry in the State of Mew York, called the Dobbs Ferry Bank, which account then and there stood in the name of the said Walter It. Gillette as Trustee, was the personal account of the said Walter It. Gillette, and from what source the money that had theretofore been deposited to the credit of the said bank account had come; ” and that the defendant then and there feloniously, willfully, knowingly and corruptly did falsely swear “ that the said bank account was the personal account of him, the said Walter R. Gillette, and that the money that had been deposited to the credit of the said bank account had come from the personal account of him, the said Walter R. Gillette,” whereas in truth and fact the said account was not his personal account, but his account as trustee for the Mutual Life Insurance Company of
The grand jury which found the indictment at the time the perjury is alleged to have been committed was making an investigation for the purpose of ascertaining, among other things, whether officers of life insurance companies of the State of New York had violated any of the criminal laws of the State, which crimes, if committed, were triable in the county of New York. A subpoena was regularly issued requiring the defendant to attend before that body and give evidence in a proceeding entitled “ The People of the State of New York against John Smith,” et al. In obedience to the subpoena he went before the grand jury and, the usual oath being administered, answered that he affirmed. He was not informed of the nature of the investigation or the purpose of his testimony. After he had stated that there were accounts kept in certain banks by committees and officers of the Mutual Life Insurance Company — the funds therein being used for confidential purposes — he was asked: “ Q. What is the account that is in Mr. Field’s bank at Dobbs Ferry? A. That is my personal account. * * * Q. Where does that money that was deposited -there come from ? A. Came from my personal account.” Immediately thereafter and without leaving the witness stand, he stated that he had received from' time to time from certain officers of the insurance company, various amounts of cash to be used for confidential purposes in the interest of the company; that he did not personally disburse the money, but paid it out as directed; that this money he at first kept in a safe belonging to himself, but later deposited it in the Dobbs Ferry Bank in the account referred to; that the money, in fact, belonged to the insurance company and that he for some time had endeavored to return it, and had gone so far as to take counsel on the subject; that lie had never used it in his personal affairs, but only for confidential purposes for the company. The perjury charged in the indictment and for which defendant has been convicted consists solely of the answers to the two questions above quoted.
The Constitution of this State provides that “No person shall be held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a grand jury * * *; nor shall he be compelled in any criminal case to be a witness
I had occasion to express my views in People ex rel. Hummel v. Davy (105 App. Div. 598) as to the right of a witness before a grand jury which was investigating a charge, not against the witness, but whose testimony might tend in some way to incriminate him, and there said that “ Merely being compelled to appear in pursuance of a subpoena, and be sworn, is no violation of a constitutional privilege, for the witness must take the oath so that his assertion of privilege shall be made under the sanction of an oath.” I still adhere to that view. Being called as a witness where the
But even in the case of a witness thus subpoenaed, if his testimony results in proving a crime against himself, an indictment cannot be predicated thereon. In the leading case of Counselman v. Hitchcock (supra) it was held that where a person was under examination before a grand jury, in an investigation into certain alleged violations of the Interstate' Commerce Act, he was not obliged to answer questions where he stated that the answer might tend to criminate him. Mr. Justice Blatcheobd, in delivering the opinion of the court, said: “ It is broadly contended on the part of the appellee that a witness is not entitled to plead the privilege of silence, except in a criminal case against himself; but such is not the language of the Constitution. Its provision is that no person shall be compelled in any criminal case to be a witness against himself. This provision must have a broad construction in favor of the right which it was intended to secure. * - * If Counsel-man had been guilty of the matters inquired of in the questions which he refused to answer, he himself was liable to criminal prosecution under the act. The case before the grand jury was, therefore, a criminal case. * * * His answers, therefore, would be testimony against himself, and he would be compelled to give them in a criminal case. It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.”
That case was cited with approval and followed in People ex rel. Lewisohn v. O'Brien (176 N. Y. 253), the court saying: “ We are of opinion that the construction given to the very clear and plain words of the Constitution in Counselman v. Hitchcock is reasonable,
A person against whom the inquiry of the grand jury is directed, should not be required to attend before that body, much less be sworn by it, and if he is and an indictment be found, it should be set aside upon motion, and if not, if the fact appears upon the trial, it will invalidate a conviction if one be had. (People v. Singer, 18 Abb., N. C. 96; People v. Haines, 1 N. Y. Supp. 55; State v. Froiseth, 16 Minn. 296; Boone v. People, 148 Ill. 440; United States v. Edgerton, 80 Fed. Rep. 374.)
In United States v. Edgerton (supra) the court, in setting aside the indictment, said: “ It is fatal to the indictments that the defendant was called to testify in the particular matter from which they resulted without being informed or knowing that his own conduct was the subject under investigation. * * * Where a witness is compelled to testify against himself the injury inheres in the violence done to his rights. It is not susceptible of proof, nor the policy of the law to require it, and the injury done to the public in such case outweighs that suffered by the defendant.”
Here it sufficiently appears in this record — to say nothing of the appeal from the order denying a motion to set aside the indictment — that the defendant’s constitutional rights were violated when he was required to attend and testify before the grand jury.
The foregoing discussion brings us to a consideration of the question which is .raised as to the form of the indictment. The defendant contends that it does not comply with the requirements of the Code of Criminal Procedure, and for that reason his demurrer thereto should have been sustained. The substance of the indictment is set out in the preceding part of this opinion, and I think error was committed in not sustaining the demurrer. The Code of Criminal Procedure (§§ 275, 276) provides that an indictment must not only designate the crime, but contain a plain and concise statement of the acts constituting it. Formerly, under the common law, it was necessary that an indictment for perjury should set forth at length the proceedings in which the alleged perjured testimony was given. This rule, however, has been modified by statute, so that now “ it is sufficient to set forth the substance of the controversy or matter in respect to which the crime was committed, and in what
The case last cited is directly in point. There the indictment alleged that the defendant committed perjury on “an examination of certain persons charged with crimes or offences against the laws of the United States.” On demurrer the indictment was held bad, the court saying: “ It is not enough to allege that the persons named were charged with a crime or offense against a law of the United States, for that is a conclusion of law, but the particular charge should be stated. * * * It was also objected that it does not'appear from the indictment what charge was under investigation before the Commissioner and that therefore the Court cannot see that the testimony alleged to have been falsely given was material. In this respect also the indictment is defective.”
To constitute perjury the false testimony must be given concern
Finally, after a careful consideration of the record, I am of the
Even if it be said that the answers were misleading, in that he did not at once explain fully as to the matter, it did no harm, because immediately following such answers, and before he left the witness stand, he told the whole truth with reference to the account and the source from which the fund came. Ho one was misled; no one was deceived, and no one was injured. There is absolutely no evidence to justify a finding by the jury that he “wilfully, knowingly and corruptly ” testified falsely.
But I do not choose to rest my conclusion on this ground alone. Even if it be assumed that the answers were false and made with the intention of misleading or deceiving, an indictment for perjury could not be predicated thereon, inasmuch as immediately thereafter he fully explained the nature of the account and the source from which the fund came. A judicial investigation or trial has for its sole object the ascertainment of the truth that justice may be done. It holds out every inducement to a witness to tell the truth by inflicting severe penalties upon those who do not. This inducement would be destroyed if a witness could not correct a
The insurance investigation developed a serious situation as to the management of life insurance companies and it may be, and very likely is, that some of the officers of such companies are liable to and should be punished criminally for what they did, but when this is done it must be done according to the law of the State. Ours is a government of law, and public clamor, no matter how loud or long continued, is not evidence, nor is it a justification for judicial action. It is a matter of the highest regard to the people of the State that persons who commit crimes should be punished, but no more so than that .they should be punished in a legal way. If the constitutional and statutory provisions have to be violated in order to inflict the punishment then it had better not be done, because to do so would be nothing less than the act of the mob under the guise of law.
Several other errors are alleged which would require serious consideration, but the conclusion reached renders it unnecessary to pass upon them.
I am of the opinion that the defendant was not legally indicted ; that the indictment is fatally defective, and that he was not justly convicted, and that the judgment óf conviction should, therefore, be reversed, the indictment quashed and the defendant discharged.
Ingraham, J., concurred ; Houghton and Scott, JJ., concurred on last two grounds.
Concurrence Opinion
I concur in the reversal of the judgment on the ground that the evidence is insufficient to sustain a finding that the defendant knowingly and willfully testified falsely ; but I dissent from the dismissal of the indictment and the discharge of the defendant, and am of opinion that a new trial should be ordered.
Judgment reverséd, indictment quashed and defendant discharged. Settle order on notice.