140 N.Y.S. 887 | N.Y. App. Div. | 1913
Lead Opinion
The defendant was convicted of perjury for swearing falsely upon a bastardy proceeding brought against him. He testified that he was unmarried and never had been married, when in fact he had been married and then had a wife living.
That he so testified willfully, knowing that his testimony was false, is beyond doubt. The excuse he makes for so doing is that he wanted to save his wife and mother from disgrace. This, however, does not save him from conviction for perjury
But his testimony must have been material to make out the crime of perjury (Penal Law, § 1620; People ex rel. Hegeman v. Corrigan, supra; People v. Teal, 196 N. Y. 372; People v. Peck, 146 App. Div. 266; affd., 206 N. Y. 669), and that question is one of law. (People ex rel. Hegeman v. Corrigan, supra; People v. Peck, supra.) The test is whether the statement could properly have influenced the court which was investigating the bastardy proceeding upon any question which was before it for its determination. The testimony need not be direct proof upon the issue. If the false statement is circumstantially material or tends to support and give credit to the witness in respect of the main fact, it is sufficient to sustain a charge of perjury. (Wood v. People, 59 N. Y. 117, 123.)
The learned district attorney concedes that the false testimony was not material upon the main question, namely, whether the defendant was the father of the child, but contends it was material on the question as to what amount he should be required to pay to support the child and mother. The indictment alleges that the testimony was material upon the inquiry and charge against the defendant, which included and embraced inquiries into the financial condition of the defendant, and the legal obligation resting upon him to support and maintain other persons. It is possible that the testimony may have been material upon that inquiry, but not only must the materiality be shown in the indictment itself, either by direct statement or by the facts stated therein (People v. Peck, supra); it must also be proven on the trial. (Wood v. People, supra.)
Title 5 of part 6 of the Code of Criminal Procedure relates to bastardy proceedings. Chapter 1 of said title provides that the father and mother of a bastard are liable for its support, and in case of their neglect or inability, it must be supported by the county, city or town chargeable therewith, under the provisions of the Poor Law. (Code Crim. Proc. § 839.) The parents may
The testimony on behalf of the prosecution relating to the false testimony is very brief. It appeared that in the bastardy proceeding the defendant was called as a witness for the overseer of the poor, and after being sworn and stating that his occupation was that of a traveling salesman, he was asked: “Are you a married man?” and answered, “No, sir.” He was then asked: “Ever been married ? ” “No, sir.” In the proceedings subsequently had in the County Court to discharge the defendant from imprisonment, the defendant at first testified that he was unmarried, but immediately thereafter stated
While the defendant was under a legal obligation to support his wife as well as his bastard child, it is not apparent how it became material to show in the bastardy proceeding that the defendant had a wife. If it was material there it should have been made to appear on the perjury trial. Even upon the application to discharge him from imprisonment, the circumstances had but a remote bearing. But there he testified truthfully.
As has been pointed out, the law requires the defendant to support his bastard child. A full indemnity to protect the public against the expenses thereof by way of an undertaking must be given by him in the first instance, or he must go to prison. If after that he is unable to support the child or give the undertaking, proceedings may be taken to release him from imprisonment. Upon that proceeding the question of his financial condition and ability to support the child becomes material.
I think the judgment of conviction should be reversed and a new trial ordered.
All concurred, except McLennan, P. J., who dissented in an opinion; Lambert, J., not sitting.
Dissenting Opinion
I dissent and vote for the affirmance of the judgment of conviction of the crime of perjury upon the ground that the matter as to which the defendant falsely testified was material to the issue before the justices who made the order of filiation.
Judgment of conviction reversed and a new trial granted.