People v. Phelps, 5 Wend. 9

People v. Phelps

5 Wend. 9 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

It is objected that the indictment does not contain an averment of the facts necessary to give jurisdiction to the recorder to administer an oath.

The act to prevent perjury, 1 R. L. 171, contains a definition of the offence, and states what shall be the substance of the indictment: any person who, by his own act or consent, shall wilfully and corruptly swear falsely before any court, or person having competent authority to administer the oath, shall be adjudged guilty of wilful and corrupt perjury.

The second section of this act prescribes, “ that in every information or indictment to be prosecuted against any person for wilful and corrupt perjury, either at the common law or upon this act, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, or before whom the oath was taken, averring such court or person to have a competent authority to administer the same, together with proper averments to falsify the matter wherein the perjury is assigned, without setting forth any part of any record or proceedings, either in law or equity, other than as aforesaid, and without setting forth the commission or authority of the court or person before whom the perjury was committed.” This section is substantially the same as the statute, 23d George 2d, ch. 11. Before that statute, it seems indictments were prolix, reciting the organization of the court before which the perjury was alleged to *16have been committed; and also (he whole of the proceedings. The statute was intended to relieve the public prosecutor from the difficulties attending that mode of proceeding. 2 Chitty’s Cr. Law, 307. 5 T. R. 317. 2 Maule and Sel. 385. By the English decisions, since the statule, it is only necessary to state the substance of the offence, the name of the court, a simple averment of the court’s authority to administer the oath, and proper averments of the falsity of the defendant’s assertions; unnecessary prolixity is censured. 2 Chitty's Cr. L. 307, and cases there cited. It was not necessary, therefore, to set forth the facts which gave jurisdiction to the recorder to administer the oath, as it is when the defendant is pleading a discharge, granted under our insolvent laws. But if it were necessary to slate such facts, it is sufficiently done in the indictment before us. It slates that the defendant presented to the recorder “a certain petition of him the said A. B. Phelps, (as well in his individual capacity as in the capacity of the partner of Elias Warner,) therein represented as being then actually an inhabitant within the said city.” It is objected that Elias Warner and not Abner B, Phelps is represented as being an inhabitant; but matter slated in a parenthesis saves the rule of grammar which refers to the last antecedent, 1 Chitty’s Cr. L. 173, and rejecting the words in the parenthesis, it is plainly stated that Abner B. Phelps, and not Elias Warner, was represented as being an inhabitant of the city of New-York, If it were necessary therefore to state the facts giving jurisdiction to the recorder, such facts are sufficiently averred. However, jurisdiction is sufficiently shewn by the averment that the recorder had lawful and competent power and authority to administer the oath; the truth of such averment must appear on the trial.

It is also objected that (he matters upon which the falsity is alleged are not set forth in the indictment ; that is, that the inventory charged to be false is not set forth at large. The statute says it shall be sufficient to set forth “the substance of the offence charged upon the defendant.” The rule laid down by Lord Mansfield, King v. Aylett, 2 T. R. 69, is this: it is necessary in every crime that the indictment charge it *17with certainty and precision to be understood by every body; alleging all the requisites which constitute the offence ; and Chitty adds, that every averment must be so stated that the party accused may know the general nature of the crime of which he is accused. 1 Chitty’s Cr. L. 172. In the King v. Aylett, Lord Mansfield had decided that the statute of 2d George 2d, ch. 11, was only intended to obviate the difficulties in stating the whole record of the trial on which the perjury had been committed. If it is not necessary to set forth the record of the trial on which the perjury was committed, it cannot be necessary to set forth the proceedings before the recorder (which are in the nature of a record,) farther than to apprize the defendant of the nature of the crime of which he is accused.

The indictment avers that with the papers presented to the recorder, was one purporting to be “ a full and just inventory of all the estate, both real and personal in law and equity, of him, the said Abner B. Phelps.” It also avers that he produced a certain oath and affidavit in writing, to the truth of which he was sworn. The oath is then set out in the words prescribed by the statute, in which be swears that the inventory of his estate is in all respects just and true ; and that he had not disposed of any part of it for the future benefit of himself or family, or in order to defraud his creditors, or to obtain the benefit of the act, &c. The indictment charges t he oath in general terms to be false in every particular ; and specifies the falsity in regard to the inventory to be that $3500 worth of goods in Philadelphia; sundry other goods found in the late dwelling house of the accused of the value of $1000; goods in a store in Chatham street of the value of $2000; and certain goods in Troy of the value of $900, which were owned by the defendant individually, or as a partner of Warner, were knowingly and fraudulently left out of his inventory; and that he had disposed of the same for the future benefit of himself or his family, and with intent to defraud his creditors, and fraudulently to obtain the benefit of the act. In my opinion, there can be no doubt that this indictment is sufficiently certain. The defendant was informed with all necessary precision of the nature of *18the charge not only, but also of the facts and circumstances w)3jc^ wouy be adduced in evidence to support it.

As to the objection, that the indictment contained a charge of two distinct offences, one for perjury and one for concealing goods to defraud creditors, it is not necessary to en-quire whether the indictment would be vicious, supposing it to be so; but the fact is not so: the concealment of the goods is stated as the fact, shewing the falsity of the defendant’s oath.

It is further objected that the word “ owing” having been omitted in the oath cannot be supplied by innuendo. The office of an innuendo is to explain what has been before stated. The affidavit could not be understood in any other manner than as explained by the innuendo; it is therefore not objectionable.

We are therefore of opinion that as the law stood before the first of January last, the indictment is good.

A question has been made as to the application of the revised statutes to this case. The offence was committed before they took effect, and the indictment and trial were subsequent. The sixth and seventh, sections of the repealing act of December 10, 1828,2 R. S. 779, are substantially as follows: That no offence committed previous to the time when any statutory provision shall be repealed, shall be affected by such repeal, except that where the punishment shall be mitigated by the revised statutes, such mitigated punishment shall be applicable, though the offence was committed before that time; and that no prosecution, pending at the time of such repeal, shall be affected by it, except that the proceedings had after the revised statutes take effect shall be conducted according to their provisions. And by the article “ of indictments and proceedings thereon,” 2 R. S. 728, § 52, no indictment shall be deemed invalid, by reason of several defects therein enumerated, or, “by reason of any other-defect or imperfection in matters of form which shall not lend to the prejudice of the defendant.”

If this provision is applicable to this case, there can be no doubt but that the indictment is valid; and that these statutes do operate upon this case there can be no question. *19The character of the offence remains as it was when committed, and the punishment cannot be enhanced by any act taking effect subsequently ; but the proceedings must be conducted under the revised statutes. The prosecution was commenced and carried on since the first of January, and during that period the revised statutes and no other were in force. Offences committed under the old statutes were liable to certain punishments, and no greater can be inflicted; but the prosecution must be conducted by virtue of the statutes in force when the proceedings are had. There is no provision in the repealing act, that the prosecution shall be conducted under the old statutes for offences committed under them, but that all proceedings had after the revised statutes take effect shall be conducted according to the provisions of those statutes; and shall be in all respects subject to them.

Thus far this case has been considered as though the second section of the act to prevent perjury, 1 R. L. 171, had been incorporated into the revised statutes, because so it was considered on the argument before us, Such, however, is not the fact; that section is omitted in the revision. The indictment therefore must be such as that it would be held substantially good at common law, applying to it the provision in the revised statutes already quoted, which declares that no indictment shall be deemed invalid “by reason of any defect or imperfection in matter of form which shall not lend to the prejudice of the defendant.” 2 R. S. 728, § 52. The question then arises what is matter of substance, and what matter of form. Probably no more correct rule can be laid down than that adopted by the statute of 23d George 2, ch. 11. It shall be sufficient to set forth the substance of the offence charged, by what court, or before whom the oath was taken, (averring such court or person to have competent authority to administer the same,) together with the proper averments to falsify the matter in which the perjury is assigned. So much seems to be considered matter of substance—and what follows matter of form, to wit, without setting forth the pleadings, record or proceedings, other than as above, and without setting forth the commission or authority of the court.

*20The substance of the charge is intended in opposition to its detaiis. anj therefore it is sufficient, if all the circumstances necessary to describe and render the charge intelligible in its legal requisites appear on the face of the proceedings» 2 Chitty’s Cr. L. 307. In the King v. Dowlin, 5 T. R. 318, Lord Kenyon has given us his understanding of the substance of the offence, in contradistinction to its detail, and which corresponds with the above definition. He also adds, that it was never necessary to set forth the proceedings shewing the materiality of the question on which the perjury is assigned, it having always been sufficient to allege, generally, that the particular question became a material question. These remarks were made in a case arising under the statute where the substance only is necessary to be stated. They are, therefore, applicable to indictments' under our revised statutes, where objections can only be taken ■ to defects in substance, and not to matters of form, unless they tend to the prejudice of the defendant. The indictment in this case contains the substance of the offence, with the circumstances necessary to render it intelligible, and to inform the defendant of the allegations against him. The indictment is therefore good,either under the old or the new statutes; and the general sessions are advised to. render judgment upon the conviction.