188 A.D. 148 | N.Y. App. Div. | 1919
Lead Opinion
The defendant was indicted and convicted of the crime of perjury in that he had testified falsely before a .grand jury.
Mr. Justice Rtjmsey, writing for this court, has succinctly stated the elements of the crime of perjury: “It is apparent that to make one guilty of it, he must have taken an oath in a proceeding before one authorized to administer an oath; he must have given testimony which was material in that proceeding; he must have stated that matter to be true which he knew to be false, and that falsehood must be willful and to his knowledge.” (Krauskopf v. Tallman, 38 App. Div. 273, 276.)
The most serious defect in the proof is the failure to show that the testimony alleged to have been false was material in the proceeding before the grand jury. In the first place it was not proved what the subject-matter of the grand jury’s investigation was. The stenographer of the grand jury was called and asked: “ Will you state what was the nature of the investigation? ” Answer, “ The subject-matter of that investigation was the fire that was alleged to have occurred in the Bachner-Hall factory in Gloversville.” “ Q. With reference to what, Mr. Fishbough? * * * The Witness: The subject-matter was, as I said before, the alleged fire that was said to have occurred in the Bachner-Hall factory in Gloversville. * * * Q. What, if anything, was the nature of the investigation? * * * A. Reference was made to certain claims made by the Bachner-Hall Company for the payment of insurance. * * * By the Court: Q. You were not asked what reference was made to, you were asked what the matter was that was being investigated by the Grand Jury. Reference could be made to a great many different things? A. Well, that subject was mentioned. Q. They might have mentioned the subject of the weather? A. Testimony was given on that subject. By Mr. Weller: Q. On what subject? A. On the subject with reference to certain claims made by the Bachner-Hall Company on insurance companies here in New York City. Q. And witnesses were heard? A. Witneses were heard on that subject and gave testimony.”
This is all the testimony that was given tending to disclose the subject-matter under investigation by the grand jury.
We assume that upon the next trial the district attorney will prove that the grand jury before whom the testimony was given was competent to administer the oath and enter upon the investigation. (Matter of Hackley, 21 How. Pr. 103; Lambert v. People, 76 N. Y. 220, 235.) Upon his brief on this appeal the assistant district attorney stated that he “ cannot deny that there was a defect of proof in that technical regard,” but he claimed that by not raising the question until after the judge’s charge the defendant had waived the objection. The matter was called to the attention of the court by a request to charge before the jury had retired. The court could have permitted the case to have been reopened and the proof supplied. (People v. Ferrone, 204 N. Y. 551, 553.) This was not a technicality, for .it is one element of the
The indictment is not as specific as it might well have been in its statement of the subject-matter of the investigation before the grand jury. We are of opinion, however, that it was sufficient and that defendant's demurrer thereto was properly overruled. The indictment in People v. Gillette (126 App. Div. 665) alleged that the subject-matter under inquiry was “whether officers or employees of any description of fife insurance companies in this State have lately violated in the County of New York the criminal laws of the State.” In the case under consideration the indictment states that the investigation was not whether any criminal law had been broken, but whether one specific statute had been violated. (See Penal Law, § 1620.)
The judgment should be reversed and a new trial granted.
Laughlin, Dowling and Merrell, JJ., concurred; Clarke, P. J., dissented.
Dissenting Opinion
I am of the opinion that there was sufficient evidence to take to the jury the question submitted to it by the learned court: “ Whether there was a proceeding pending before the Grand Jury, investigating whether a false claim had or had not been presented; second, whether the defendant was called as a witness and sworn; thirdly, whether he delivered that testimony, and fourth, if he did deliver it, whether it was false to his knowledge.” The grand jury stenographer testified to the subject-matter of the investigation as follows: “ Q. On what subject? A. On the subject with reference to certain claims made by the Bachner-Hall Company on insurance companies here in New York City. Q. And witnesses were heard? A. Witnesses were heard on that subject and gave testimony.” ■ He also testified: “The subject-matter of that investigation was the fire that was alleged to have occurred in the BachnerHall Factory in Gloversville. * * * Testimony was taken.” And under cross-examination by defendant's counsel he was
The defendant was indicted for perjury as a witness before the grand jury before which “ was duly pending * * * a certain investigation and inquiry for the purposes, among other things, of ascertaining what persons, if any, in this County had been guilty of the Crime of Presenting and Causing to be Presented a False and Fraudulent Claim and Proof in Support of .such Claim for the Payment of a Loss upon a Contract of Insurance, Knowing it to Be Such, triable in said County.”
I am, therefore, unable to agree with Mr. Justice Page that this judgment should be reversed for defect in proof in this particular, and find no errors in the record sufficient to warrant a reversal of what I regard as a just conviction.
The judgment should be affirmed.
Judgment reversed and new trial ordered. Order to be settled on notice.