14 N.Y. 117 | NY | 1874
The plaintiff in error was convicted at the Court of Sessions of the county of Washington, held in August, 1872, upon an indictment for perjury alleged to have been committed on the trial of an action for slander at the Circuit Court in that county in 1871, brought by him against one Conan t for charging him with killing and selling the beef of a diseased cow, knowing that it was diseased. A writ of error was issued out of the Supreme Court, directed to the judges before whom the trial was had, commanding them to return the record and proceedings to that court, and a return having been made, the conviction was, after argument in the Supreme Court, affirmed. The case has, by writ of .error, been brought into this court and is now before us for review. The error, book contains the judgment record and a bill of exceptions, signed and sealed by the county judge and the justices of the Sessions of Washington county, at a term of that court held in August, 1873.
The point is taken on behalf of the people, that the questions arising on the bill of exceptions cannot be considered for the reason that it was not settled by the judges before whom the indictment was tried. It appears from an inspection of the record that the trial court was composed of the county judge of Saratoga county, and the three justices of the Sessions of Washington county, and that the judges who
Conant, the defendant in the slander suit, justified in his answer the speaking of the words charged in the complaint, and alleged, in general terms, that at or about a time stated the plaintiff did kill and sell the beef of a diseased cow, knowing it to be diseased. The assignments of perjury in the indictment are founded upon the evidence alleged to have been given by Wood on the trial of that action ; and it
At the conclusion of the testimony the court was requested to charge the jury that it had not been proved that the testimony, upon which the perjury was assigned, was material to the issue tried. The same request was made separately in respect to each particular statement of the prisoner upon which perjury was assigned. These requests were refused and exceptions were taken. The jury rendered a general verdict of guilty upon all the counts. The question is raised by these exceptions whether there was a failure to prove, in respect to all or any of the numerous statements upon which perjury was assigned, that they were material to the question and issue before the court. Dunckel v. Wiles, 11 N. Y., 430.) It must appear, either from the facts set forth in an indictment for perjury that the matter sworn to and upon which the perjury is assigned was material, or it must be expressly averred, that it was
If, therefore, there was a failure to show, in respect to any one of the assignments of perjury, that the matter embraced therein was material, the1 conviction must be reversed; .otherwise, as the court cannot know upon what ground the jury proceeded, the defendant may have been convicted upon an-assignment of perjury which related to testimony not material to the case. We have been referred to cases which hold that judgment will not be arrested upon a conviction for perjury where the indictment contains in one count several assignments, some of which are good and others defective. (People v. Curling, 1 J. R., 320; Same v. Wiley, 8 Hill, 213 ; Comm. v. Johns, 6 Gray, 274; State v. Hascall, 6 N. H., 352.) It will be presumed in such a case that the jury disregarded the defective assignments and proceeded upon the substantial and sufficient averments in the indictment. But when the attention of the court on the trial is specifically called to the question and the judge refuses to withdraw from the consideration of the jury those assignments which are defective in form, or which have not been sustained by proof, and exception is taken, the court cannot disregard the error. The exception to the refusal to charge gene rally that none of the-testimony upon which perjury was assigned had been shown to be material was not well taken. - This exception is sought to be supported on the ground that it does not appear that any evidence was given on the trial of the slander suit tending to show that the prisoner sold the beef of the cow to which his testimony referred, and that it affirmatively appears that the father owned the cow and sold the beef. This argument assumes that testimony, in order to be material, must relate not only to the issue in the cause, but to an issue which might be fully maintained by the party tendering it; in other words, that if the testimony relates.to a fact or circumstance which is material as part of an entire case, the accused may escape convie
For the error of the court in refusing to charge that these statements were not proved to be material, the judgment.and conviction must be reversed.
All concur.
Judgment reversed.