2 N.Y.S. 382 | N.Y. Sup. Ct. | 1888
Section 291 of the Code of Criminal Procedure provides that an indictment for perjury shall contain “proper allegations of the falsity of the matter on which the perjury is assigned.” The indictment in this case contains the allegation that the defendant “wickedly, knowingly, designedly, corruptly, falsely, and feloniously" testified to certain matters specified, and it does not otherwise allege the falsity of the testimony given. S'or that reason the indictment was held insufficient. Section 684 of the same statute provides that no departure from the form or mode prescribed by the Code in respect to any pleading renders it invalid, unless it have actually prejudiced ■the defendant, or tend to his prejudice, in respect to a substantial right. The ■two sections cited must be read together, as bearing upon the sufficiency of .the indictment in question.
And, first, is not the allegation of the indictment a substantial compliance with the requirement of section 291? Is it not an allegation of the falsity of the matter upon which perjury is assigned? It charges that the matter was falsely testified. Is not that equivalent to the charge that the matter testified was false? But, second, if it be held that the allegation is not in full compliance with the requirement of section 291, is the departure anything more than a matter of form? and, if not, has it prejudiced tlie defendant, or -does it tend to her prejudice, in respect to a substantial right?