191 A.D. 483 | N.Y. App. Div. | 1920
The only evidence in the record before us that the defendant committed the perjury charged in the indictment is found in the testimony of the stenographer of the County Court of Queens county that upon a trial in that court in the year 1918, this defendant, called as a witness for the prosecution, upon direct examination identified one Mauphet, then on trial as a man engaged in the commission of a crime, while upon cross-examination he confessed that the identification was false and that the man on trial was not one of the persons who committed the offense. He offered various explanations for the changed testimony, but the jury either accepted his evidence on cross-examination, or refused to convict upon such contradictory statements, and acquitted the man then on trial. It is charged in the indictment now before this court, not that the testimony upon direct examination was false, as he confessed, but that his testimony upon cross-examination, which he asserted was true, was perjury. It was also proved upon the trial now before this court for review, that previous to the original trial in the County Court, the defendant had testified before the grand jury that he saw the man accused engaged in the commission of the crime, that before a magistrate he had sworn that he saw the parties and could identify them and that at a police station he pointed out the original defendant as.one of the men.
But no evidence was offered at the trial of this defendant beyond the fact of his contradictory statements. The district attorney did not attempt to prove the facts concerning the original crime, the indictment was not offered in evidence, it was not shown that a crime had been committed, that the man accused and subsequently acquitted was in fact a party to the offense, or that the original identification was true, fit is suggested that the contradictory statements under oath of themselves are presumptive evidence of defendant’s guilt. But the defendant has not been indicted for making
That this is the rule at common law can hardly be doubted. The learned trial judge, in the case at bar, read to the jury section 1627 of the Penal Law: “ In any prosecution for perjury the falsity of the testimony or statement set forth in the indictment shall be presumptively established by proof that the defendant has testified, declared, deposed or certified under oath to the contrary thereof in any other written, testimony) declaration, deposition, certificate, affidavit or other writing by him subscribed.” But we fail to see how this provision of the Penal Law applies to the facts here.This departure from the common-law rule appears to be allowable only in cases where the previous contradictory statement was in writing subscribed by the defendant. Nor can it refer to a case where the second statement is part and parcel of one oral examination in which counsel upon cross-examination succeeds in breaking down the direct evidence, compelling a witness to admit the truth. In People v. Gillette (126 App. Div. 665), Mr. Justice McLaughlin, now a judge of the Court of Appeals, said: “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 false statement except by running the risk of being indicted and convicted for perjury.”
We are also of opinion that the case for the prosecution was defective because the indictment upon the trial in which the alleged perjury was committed was not offered in evidence. The defendant asked that an acquittal be directed upon this ground and his motion was denied over exception. Without the indictment it was impossible for the learned trial judge or the jury, as it is for this court, to legally determine that the evidence upon which the conviction was based was a
We cannot agree with the learned counsel for the appellant that the indictment should be dismissed and the defendant discharged. We express no opinion on the guilt or innocence of the defendant.
The judgment should be reversed and a new trial granted.
Jenks, P. J., Mills, Putnam and Blackmar, JJ., concur.
Judgment of conviction reversed and new trial granted.