N. Y. Rep.]

Opinion of the Court, per HISCOCK, J.

stance of the crime charged was that the accused had broken into the vault with intent to steal, etc. A detail of the description of the crime was that the vault belonged to certain persons and the statement of this detail was not entirely correct. It was properly held that this amendment came within the provisions of the section in question.

In People v. Ilerman (45 Hun, 175) it appeared that the defendant had been indicted for larceny in carrying away certain shoes which were alleged to be the property of one person, whereas it was proved that they belonged to another, the indictment being amended accordingly. It was held that this was proper, and Judge DANIELS, writing for the court, said: "The name of the owner of the property was no material attribute whatever of the crime charged to have been committed by the defendant. It was included in no act of his in the way of the commission or consummation of the crime. That was committed by feloniously taking or stealing the property mentioned in the indictment. It is not essential to the crime that the property should be owned by any particular corporation or person, and the principal object of inserting the name of the owner in the indictment, was to enable the prosecutor to prove the fact that the property was taken without the consent of such owner. The amendment could in no manner prejudice the defendant in his defense on the merits, for the gist of the charge was that he had feloniously stolen. this property." (p. 176.)

In People v. Langley (114 App. Div. 427) it appeared that the defendant had been convicted of the crime of grand larceny in obtaining certain property by means of false representations. The indictment charged that one of the representations was that he owned certain valuable property in Virginia, whereas the evidence showed the representation to have been of the ownership of such property in West Virginia. The court allowed the indictment to be amended. It is perfectly apparent that in such a case the amendment allowed by the court was proper.

In People v. Johnson (104 N. Y. 213) the defendant

Opinion of the Court, per HisCOCK, J.

[Vol. 196.

appealed from a judgment on conviction of the crime of seduction under promise of marriage. The indictment. alleged that the name of the woman seduced was Mary Olivert, whereas the evidence showed it to be Mary Oliplant, and the court allowed an amendment. This amendment manifestly comes within the wording of the provision which has been quoted and was upheld, the court saying: "The woman's name was not essential in the description of the offense. It would have been enough, even under the former system of criminal procedure, to have described her as one whose name was to the jurors unknown, and the legislature did not exceed its power when it provided that if the proof showed the name to have been erroneously stated, the variance should not be to the advantage of the offender, unless he was in some way thereby prejudiced in his defense on the merits.'" (p. 217.)

The only case which has been called to our attention dealing with an amendment at all similar to that which was permitted in this case is the one of People v. Poucher (30 Hun, 576), and this is a distinct authority for the appellant's contention, going further in my opinion than it is necessary to go in this case. In that case the indictment charged that the defendant had unlawfully obtained from certain people one ring of the value of eight dollars, and certain "gold coins." It appeared by the evidence that the appellant obtained the ring described in the indictment, but did not obtain any of the other property described therein, obtaining in place thereof forty-five dollars in currency. It was held that an amendment conforming the indictment to the evidence under such circumstances was erroneous under section 293 of the Code of Criminal Procedure, Judge HARDIN, who wrote for the court, saying: "We do not see how one thing named, to wit, coin, can be stricken out (of the indictment) and another thing, to wit, currency, be substituted in place of the thing stricken out, under the guise of amending the description of the thing named. In short, we are of the opinion that the section does not authorize an amendment of an indictment which charges

N. Y. Rep.]

Opinion of the Court, per HISCOCK, J.

the larceny of coin enumerated, by inserting an allegation of currency or of 'bank bills, lawful money of the United States, of a kind, number and denomination unknown, and upon a bank unknown.'" (p. 578.)

The other error alleged by the appellant consisted in the introduction of evidence relating to alleged offenses entirely distinct and disconnected from the one charged in the indictment in spite of his objections.

It appeared that the appellant had been the executor of and trustee under the will of one Richardson, who was the father of the complainant in this case, and evidence was given of admissions by him tending to show that he had wasted or misapplied a considerable sum of money belonging to said estate and to the heirs thereof in improper investments. As I have said, these transactions, assuming them to have occurred as claimed by the People and which was denied by the appellant, had no relation whatever to the offense charged in the indictment, and it was entirely unnecessary in the presentation of the People's case to detail the conversation or that portion of the conversation in which it is claimed that the appellant confessed to those misdeeds. The district attorney now seeks to uphold the admission of this testimony upon various theories, all of which, however, are so erroneous that it is not possible either to uphold the introduction of the evidence or to understand why it should have been urged upon and received by the learned trial court.

While apparently in view of the Statute of Limitations this defendant may escape merited punishment for wrongful acts, it is impossible to prevent this result in the disposition of this appeal in view of the serious errors which have been committed. The judgment of conviction should be reversed and a new trial granted.

CULLEN, Ch. J., GRAY and WILLARD BARTLETT, JJ., concur; HAIGHT and WERNER, JJ., concur in result on second ground stated in opinion, but dissent as to the first ground; EDWARD T. BARTLETT, J., absent.

Judgment of conviction reversed.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARGARET TEAL, Appellant.

Crimes subornation of perjury attempt to commit subornation of perjury does not constitute a crime where the false testimony, if given, would not have been perjury, because immaterial.

The materiality of false testimony is an essential ingredient of the crime of perjury at common law and that rule is embodied in our statute. One can only be guilty of subornation of perjury where perjury has been committed. Hence, a person cannot be guilty of an attempt to commit the crime of subornation of perjury where the false testimony solicited, if given, would not be perjury by reason of its immateriality. Where the testimony solicited is not false in any matter material to the issue presented by the complaint in an action, the fact that it may become material by a subsequent amendment of the complaint, will not support an indictment and sustain a judgment of conviction. The complaint which had been served in an action for divorce alleged one single and specific act of adultery; defendant herein was indicted and convicted of attempted subornation of perjury in that she attempted to induce a person to testify to another specific act of adultery which was not alleged in such complaint. Held, that the evilence was not false in any matter material to the issue under the pleadings as they stood at the time of defendant's alleged offense, and since there was neither perjury nor subornation thereof, there could be no such attempt to commit the crime of subornation of perjury as to fall within the statute relating to attempts at commission of crimes.

People v. Teal, 133 App. Div. 35, reversed.

(Argued October 21, 1909; decided November 23, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 18, 1909, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York rendered upon a verdict convicting the defendant of the crime of attempted subornation of perjury.

The indictment under which the defendant has been tried. and convicted charges her with the crime of attempted subornation of perjury which is alleged to have been committed in an effort to obtain false testimony to be used in an action for absolute divorce brought by one Helen K. Gould against her hus

band, Frank J. Gould. The indictment specifies that on the 20th day of July, 1908, while the divorce action was pending in the city of New York, and before it was brought to trial, the defendant herein, together with two other persons named, "unlawfully, corruptly, wickedly and maliciously did feloniously and willfully solicit and instigate and attempt and endeavor to suborn, procure and induce one Mabel MacCauslan to go and appear upon the hearing which should thereafter be had before such referee as should thereafter be appointed to take proof of the facts charged in the complaint," as a witness for the plaintiff in the divorce action and to falsely testify to certain matters which were material and relevant to the issues therein, to wit, that at some time in the month of March, 1908, she had "seen the said Frank J. Gould, when only partly dressed come out of the bedroom of a woman known as Bessie Van Doren, or Bessie De Voe, in a certain apartment, in an apartment house called the Glenmore" in the city of New York. This specification of the indictment is followed by a formal negation of the truth of the testimony thus sought to have been procured by the defendant from the said Mabel MacCauslan.

The complaint in the divorce action of Gould v. Gould was served on June 24th, 1908, and the only act of adultery charged against the defendant therein is alleged to have been committed on July 25th, 1905, in a house of prostitution in the town of North Sydney, Cape Breton, Dominion of Canada, with a woman whose name is alleged to have been unknown to the plaintiff. On July 20th, 1908, when the acts charged in the indictment were committed, the defendant's answer in the divorce action had not been served.

Upon the trial of the charge presented in the indictment, the prosecution produced evidence which, to say the least, tended to support the verdict of the jury convicting the defendant. The defendant introduced no evidence. The judgment of conviction entered upon the verdict has been unanimously affirmed by the Appellate Division and the defendant now appeals to this court.