3 A.D.2d 44 | N.Y. App. Div. | 1956
Defendant was indicted by the Grand Jury of Onondaga County for perjury in the second degree, a misdemeanor. A trial before the County Court resulted in a judgment of conviction, from which defendant appeals.
It is unnecessary to report the evidence in detail, for in our view the case presents only a question of law which is fatal to the indictment. Briefly, the People proved that on December 29, 1954, the defendant gave to one Bowers, an investigator for the State Liquor Authority, a statement in which he stated that on various occasions he had purchased liquor on credit from a certain licensee and had observed minors served alcoholic beverages on the licensed premises. Bowers, who was neither a notary public nor a commissioner of deeds, took the statement and then had defendant sign and swear to it. Thereafter, a hearing was had before a deputy commissioner of the State Liquor Authority in connection with a proceeding for the revocation of the liquor license in question. Defendant was placed under oath and proceeded to give testimony in which he repudiated his former statement and admitted it was a lie.
Based upon the above, the Grand Jury returned an indictment which merely sets forth the making of the statement and the giving of the testimony, alleges that the two were contradictory as the defendant well knew, and charges that he did willfully and corruptly commit the crime of perjury in the second degree. The indictment rests entirely upon the contradiction. There is no allegation, nor did the People prove, which version was true and which false. The authority for such an indictment is said to be section 1627-a of the Penal Law, which reads as follows: “ An indictment or information for perjury in the second degree may allege the making of contradictory testimony or statements under oath on occasions in which an oath is required by law,
The question, then, is whether an oath was required by law when defendant swore to the statement of December 29, and we are fully convinced that there was no such requirement. The execution and form of such statements are not regulated by law, nor is the legal effect thereof altered by the presence or absence of an oath. In a court of law such a statement would be hearsay and inadmissible in evidence whether it was given under oath or not. And since the statement was subscribed, it could have been used to impeach the witness even if it had not been made under oath (Civ. Prac. Act, § 343-a). Therefore, the oath added nothing to the legal effect of the statement. The law would accord it the same limited recognition whether it was verified or not. Other documents are treated differently by the Alcoholic Beverage Control Law. Thus, a petition for a local option election in cities must contain a statement that the signatures are genuine, and “ Such statement shall be sworn to'before an officer authorized to administer oaths within such city.” (§ 142.) In the absence of such a verification, we may assume that the petition would be a nullity; its legal validity depends upon the oath. Similarly, an application for a liquor license must contain certain information, which ‘ ‘ shall be given under oath” (§ 110; see, also, §§ 51-55, 61-62, 76). If there is no oath, then there is in legal effect no application. But no provision of the Alcoholic Beverage Control Law, or of the rules promulgated by the Authority, regulates the manner of taking such a statement as defendant gave to the investigator on December 29, and as a matter of the general law of evidence its effect would be exactly the same, neither more nor less, whether it was made under oath or not. That was not an occasion “ in which an oath [was] required by law”, and if our interpretation of section 1627-a is correct, that statute could not be employed in this case.
We reach the conclusions that an oath was not “ required by law ” within the meaning of section 1627-a of the Penal Law when the statement of December 29 was taken and that the judgment should be reversed and the indictment dismissed.
All concur. Present — McCurn, P. J., Vaughan, Wheeler, Whliams and Bastow, JJ.
Judgment of conviction reversed on the law and indictment dismissed.