Henry W. Unger, Maurice B. Blumenthal and Daniel W. Blumenthal for appellant. There was no proof upon the trial of the existence and pendency of an issue in the Gould action. This was a fatal defect of proof. (2 Bishop's Crim. Proc. § 913, 921; 1 Bishop's New Crim. Law, § 489; U. S. v. Howard, 3 Sumner, 12.) The matter alleged to have been attempted to be suborned by the defendant was not in any legal sense material to or, to quote part of the language of the indictment, "in support of the material facts charged in the complaint of the said Helen K. Gould." (Stevens v. Stevens, 54 Hun, 490; Davis v. Davis, 4 Misc. Rep. 454; Budd v. Budd, 55 App. Div. 113; Beadleston v. Beadleston, 20 N.Y. S. R. 21; Germond v. Germond, 6 Johns. Ch. 347; 1 Bishop's Cr. Law, § 208; People v. Morse, 3 N. Y. Cr. Rep. 104; Regina v. Phillpotts, 5 Cox C. C. 363; Chamberlain v. People, 23 N. Y. 88; Wood v. People, 59 N. Y. 123.) In the conceded status of the action of Gould v. Gould on July 20, 1908, no false swearing before a referee could constitute perjury. (Lambert v. People, 76 N. Y. 220; People v. Gillette, 126 App. Div. 665.) If the false. swearing which it is claimed the defendant sought to suborn did not and could not constitute perjury at the time of its attempted suborning, then there could be no conviction of an attempt at subornation of perjury. (People v. Jaffe, 185 N. Y. 497; People v. McLaughlin, 150 N. Y. 365.)

William Travers Jerome, District Attorney (Robert C. Taylor of counsel), for respondent. The defendant was to be judged, not by the result, but by the "condition of her mind and her conduct in the attempted consummation of her design." (People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122; People v. Conrad, 102 App. Div. 566; affd., 182 N. Y. 529.) The testimony sought to be suborned was material. (People v. Martin, 77 App. Div. 405; 175 N. Y. 315; Chamberlain v. People, 23 N. Y. 88; Regina v. Phillpotts, 5 Cox C. C. 363; Wood v. People, 59 N. Y. 117; People v. McKinney, 3 Park. Cr. Rep. 510;

N. Y. Rep.]

Opinion of the Court, per WERNER, J.

Hutchins v. Blood, 25 Wend. 413; Crookshank v. Gray, 20 Johns. 344; Comm. v. Pollard, 12 Metc. 225; Comm. v. Grant, 116 Mass. 17; Rex v. Griepe, 12 Mod. 142; Reg. v. Schlesinger, 2 Cox C. C. 200; Reg. v. Courtney, 7 Cox C. C. 111; Reg:-v. Naylor, 11 Cox C. C. 13; People v. Courtney, 94 N. Y. 490.) A section providing for punishment of subornation of perjury must receive a liberal construction in order to promote justice. (Penal Code, § 11; People v. Martin, 175 N. Y. 319; People v. Abeel, 182 N. Y. 415; Ingraham v. U. S., 155 U. S. 434; Goode v. U. S., 159 U. S. 663; People v. Jackson, 191 N. Y. 293.)

WE WERNER, J. This appeal presents a question which is both interesting and important. Can a person be convicted of attempted subornation of perjury, upon evidence which would not support a conviction upon the charge of perjury, if the attempt had been successful? As applied to the concrete facts of record the question is whether the defendant was properly convicted of an attempt at subornation of perjury even though the person sought to be suborned could not have been convicted of perjury, if the false testimony attempted to have been procured had been actually given under oath. As appears from the foregoing statement of facts, the defendant was charged with having attempted to procure false testimony from one MacCauslan, in an action. for a divorce brought by one Helen K. Gould against Frank J. Gould. At the time when this attempt was made the complaint had been served, and the only issuable charge it contained was that the said Frank J. Gould had been guilty of an act of adultery committed with a woman unknown to the plaintiff, in a house of prostitution in the town of North Sydney, Cape Breton, Dominion of Canada, on the 25th day of July, 1905. That was the precise and definite issue tendered by the complaint. What was the false testimony which the defendant herein is charged with attempting to procure? That in the month of March, 1908, Mabel MacCauslan saw Frank J. Gould, the defendant charged with

Opinion of the Court, per WERNER, J.

[Vol. 196.

the above-mentioned specific act of adultery, come out of a bedroom in the apartment of one Bessie Van Doren (alias De Voe) in the city of New York, under circumstances which might tend to support a charge of adultery between the man Gould and the woman Van Doren at that time and place. Thus we see that the traversable issue of record was whether Gould had committed adultery in a Canadian brothel in 1905, and that the false testimony solicited from MacCauslan was designed to show a separate and distinct act of adultery not referred to in the complaint, committed by Gould in the city of New York in the year 1908. The bare statement of these facts, unrelated both in pleading and in circumstance, is sufficient to draw attention sharply to the utter irrelevancy, incompetency and immateriality of the false testimony solicited, to the issue tendered by the complaint in Gould v. Gould. (Stevens v. Stevens, 54 Hun, 490; Germond v. Germond, 6 Johns. Ch. 347; Reg. v. Southwood, 1 Fost. & Fin. 356.)

From time immemorial the common law has made the materiality of false testimony an essential ingredient of the crime of perjury. From their earliest beginnings our statutes have always embodied that rule. Our penal laws, but recently recodified, have continued it. That, in short, is the unquestioned law of this state. (Penal Code, sec. 96; Penal Law, sec. 1620.) The language of the statute is that a person who willfully and knowingly testifies falsely, in any material matter, is guilty of perjury.

What, then, is subornation of perjury? The answer is that a person who willfully procures or induces another to commit perjury is guilty of subornation of perjury. (Penal Code, sec. 105; Penal Law, sec. 1632.) This plain language of the statute needs no elucidation. Subornation of perjury can only be predicated upon perjury committed. If the person alleged to have been suborned has not committed perjury, the alleged suborner cannot be held guilty of subornation of perjury. (Wharton Cr. Law, vol. 2 [10th ed.], sec. 1330; Com. v. Smith, 11 Allen, 243.)

N. Y. Rep.]

Opinion of the Court, per WERNER, J.

What is attempted subornation of perjury? Turning again to the statutes we read that "an act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime." (Penal Code, sec. 34; Penal Law, sec. 2.) "That" crime, in the case at bar, is subornation of perjury, and could only have been committed if the false testimony, if given, had constituted perjury. It seems to follow, therefore, that if there could have been no subornation of perjury, there was in fact no attempted subornation of perjury within the meaning of the statute. If the person actually giving false testimony is not guilty of perjury, the person through whose procuration the testimony is given cannot be guilty of subornation of perjury and, by the same rule, an unsuccessful attempt to do that which is not a crime when effectuated, cannot be held to be an attempt to commit the crime specified.

If this reasoning is sound, it is clear that the question before us resolves itself into the inquiry whether the actual giving of the false testimony set forth in the indictment would have constituted the crime of perjury. We have already said that the false testimony which the defendant attempted to procure was irrelevant, incompetent and immaterial to the only issue. presented by the complaint in Gould v. Gould. We may pass without discussion the elements of irrelevancy and incompetency. These could have been waived. They are, moreover, not essential to the commission of perjury as defined in the statute. It is different, however, as to materiality. If false testimony is not material it cannot support an indictment. for perjury. The testimony upon which such a charge is predicated must be false "in any material matter." The testimony solicited of MacCauslan was not false in any matter material to the issue in Gould v. Gould, and we do not see how the conviction in the case at bar can be sustained unless we adopt the suggestion that if the false testimony, although not material when solicited, might have become so by a subsequent amendment of the complaint, then the facts proved upon the trial support the charge laid in the indictment and

Opinion of the Court, per WERNER, J.

[Vol. 196.

We cannot entertain this

sustain the judgment of conviction. view. If the charge of perjury could not have been sustained in case the false testimony had actually been given under the complaint as it then stood, no subsequent change in the pleading or issue could relate back to the time when the act was committed. It would be highly dangerous to make the charge of perjury dependent upon issues or events arising after testimony has been given. If that were the rule it would be unsafe to testify with the utmost truthfulness upon any issue which might, by any possibility, be changed by subsequent events. No such shifting rule ought ever to be engrafted upon a system of jurisprudence in which the protection of individual rights is a cardinal principle.

It is suggested that this is a narrow and technical view of the question which will permit to go unpunished many who are as morally culpable as though the false testimony given or solicited by them were actually material to an issue in existence when the false testimony is given or solicited. There are several answers to this intimation. We read the statute as we find it. If it is ever deemed wise to take out of the statute defining perjury the element of materiality in the false testimony given, suborned or solicited that should be done by legislative enactment and not by judicial construction. We admit that the rule of strict construction applicable to penal statutes is modified by the legislative declaration that the Penal Code (now Penal Law) shall be "construed according to the fair import of their terms to promote justice and effect the objects of the law," but we do not think that this means that an essential part of a statute may be ignored for the purpose of promoting justice in a particular case.

Beyond all this, however, the legislature seems to have provided for just such cases as the one at bar, in which it may be impossible to prove the commission of the crimes of perjury and subornation of perjury as defined in the statutes, but which yet disclose acts that should be punishable because they are prejudicial to the orderly and righteous administration of justice. The former Revised Statutes under the general title