N. Y. Rep.] Opinion of the Court, per WERNER, J.

any cause,

* * *

relating to perjury and subornation of perjury provided: "Every person who shall, by the offer of any valuable consideration, attempt unlawfully and corruptly to procure any other to commit willful and corrupt perjury, as a witness, in shall, upon conviction, be punished by imprisonment in a state prison not exceeding five years." (2 R. S. p. 682, sec. 8.) When the Penal Code was enacted this section, much broadened in scope and effect, was taken out of the chapter relating to perjury and subornation of perjury and placed under the new title " Falsifying Evidence." Under the latter title the section as redrawn reads: "A person who gives or offers or promises to give, to any witness or person about to be called as witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means fraudulently to induce any witness to give false testimony or to withhold true testimony, is guilty of a felony." (Penal Code, sec. 113; Penal Law, sec. 2440.) It will be observed that the provision relating to the giving, offer or promise of a bribe to influence a witness, is supplemented by the declaration that any attempt "by any other means fraudu lently to induce any witness to give false testimony or to withhold true testimony," shall constitute a felony.

If this amplification of the statute has any significance whatever, it must mean that any fraudulent attempt by a person to induce another to testify falsely is punishable as felonious, even though it does not fall within the purview of the statutes relating to perjury in which the test of the materiality of the false testimony is still retained. That this seems to have been the legislative purpose behind this enlarged or supplemental statute is further evidenced by the fact that the section' was placed, not under the general title Perjury and Subornation of Perjury," but under a special classification entitled "Falsifying Evidence." If this is the fair import of the phrase and collocation of the amended statute, it will readily be perceived that the danger which is said to lurk in too literal a construction of the statutes relating to

66

Opinion of the Court, per WERNER, J.

[Vol. 196.

perjuries is much more apparent than real. All that seems to be necessary to the prosecution of persons guilty under either of these branches of our criminal law, is to frame indictments under the proper statutes and make proofs accordingly.

Thus far we have proceeded upon the assumption that the statutes are clear and unequivocal. We are referred to certain decisions, however, which are said to indicate, if they do not explicitly hold, that the test of materiality is to be applied to the subject of an action and relates to the issue at any stage of a case, rather than to an issue as framed when the testimony is given. Lest silence as to these cases should be misconstrued into acquiescence as to their effect, we shall briefly review them. It is said that the question has been settled ever since Lord COKE's definition of perjury as "a crime committed when a lawful oath is ministered by any one that hath authority, to any person, in any judicial proceeding, who sweareth absolutely and falsely in a matter material to the issue, or cause in question, by their own act, or by the subornation of others." (3rd Inst. 165.) We see nothing in this definition that conflicts with our own views as to the effect of statutes relating to perjury. When "issue" and "cause" are synonymous, as in the case at bar, it matters not which expression is employed; and it may well be that in other cases where these terms are not convertible, there may be materiality of testimony as to the general cause, although it may not exist as to one or more of the issues involved. It is but a play upon words to say that in an action for a divorce based upon a single specific act of adultery there can be any distinction between "cause" and "issue." It is true that the cause of action is adultery, but it is the adultery alleged, and that is the issue. Proof of any other act of adultery than that which is specifically alleged is no more material than proof of a larceny or any other kind of tort. The case of Reg. v. Phillpotts (2 Den. Cr. Cas. 302) is also cited; but what was that case? The defendant therein had testified that a certain paper was a true copy of a will,

and that he had examined one of the record books to ascertain whether it was a correct transcript. The court was ready to receive the paper, but it was withdrawn. The defendant had not examined the record and had testified falsely in that regard. The paper was not competent, although the defendant's testimony respecting it was material to the litigation. Upon the subsequent prosecution for perjury the court held that the defendant could be convicted, and that "the question whether perjury had been committed must depend upon the state of things when the witness left the box" and not upon what happened thereafter. In Reg. v. Gibbons (9 ̧Cox Cr. L. Cas. 105) a similar situation arose. The person accused of perjury had sworn in another litigation to the credit of a witness. The testimony, although not relevant, was held material, and upon that ground was held to support a charge of perjury. Our own state affords an excellent example of the rule laid down in the two English cases just referred to. In Chamberlain v. People (23 N. Y. 85) the plaintiff in error was convicted of perjury. The charge was predicated upon false testimony given by him in an action for a divorce against his wife upon the ground of her alleged adultery. She had borne a child, and he testified that he never had sexual intercourse with her. The fact testified to by the husband was most material to the issue, but the husband was not a competent witness to the fact. This court decided that the criminal prosecution depended upon the materiality of the evidence in the action for divorce, and not upon the competency of the witness. The rule enunciated in that case is now embodied in our penal laws in the following language: "It is no defense to a prosecution for perjury that the defendant was not competent to give the testimony." (Penal Code, sec. 98; Penal Law, sec. 1623.) When the distinction between competency and materiality, thus clearly made both in decisions and statutes, is given its proper effect, there can remain no doubt that when testimony is material, although concededly incompetent, perjury may be assigned upon it; and the converse of the proposition must logically follow. A

Dissenting opinion per HAIGHT, J.

[Vol. 196.

witness may be competent, and his testimony may be relevant, but if it is not material to the issue, it cannot be the basis for a charge of perjury. Our attention is called to the cases of People v. Moran (123 N. Y. 254) and People v. Gardner (144 N. Y. 119). It is said that they are authori ties for the doctrine that the question whether a person has made an attempt to commit a crime depends upon the mind and intent of the actor and not upon the result of the act. That is quite true as regards the crimes of larceny and extortion, which were the subjects of discussion in those cases, and it may be true in many other instances where the law looks only to the intent without reference to result. But a different rule has been established as to the crime of perjury. The statutes declare that materiality of the false testimony is of the essence of the crime. Without it the crime cannot be committed no matter what the intent may be. The same rule applies to subornation, and where there is neither perjury nor subornation thereof, there can be no such attempt to commit either of these crimes as to fall within the statutes relating to attempts at commission of crimes.

It may be said in closing that although the unanimous affirmance at the Appellate Division of the judgment of conviction herein precludes an examination in this court of the facts of record, the question which we have discussed is effectually raised by appropriate exceptions to rulings in the trial court upon the admission of evidence.

The judgment of conviction herein should be reversed and a new trial ordered.

HAIGHT, J. (dissenting). The defendant, Margaret Teal, with two other persons, were jointly indicted for the crime of an attempt to commit the crime of subornation of perjury, on the 20th day of July, 1908, at the borough of Manhattan, city and county of New York. At that time there was pending in the Supreme Court, in that county, an action brought by Helen K. Gould, as plaintiff, against her husband, Frank J. Gould, in which she sought to procure a judgment dissolv

N. Y. Rep.]

Dissenting opinion, per HAIGHT, J.

ing the marriage contract and divorcing the parties. The indictment charges that afterwards and before the trial of the action, the defendant and those indicted with her, "unlawfully, corruptly, wickedly and maliciously did feloniously and wilfully solicit, 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 in the said action as a witness for and on behalf of the said Helen K. Gould, the plaintiff in the said action, as aforesaid, and upon the said hearing to commit perjury and falsely to swear and give in evidence, before such referee, certain matters material and relevant to said action and to the issues therein and in support of the material facts charged in the complaint of the said Helen K. Gould in the said action in substance and to the effect following; that is to say, that she, the said Mabel MacCauslan, had at some time in the month of March, 1908, 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." The indictment further charges that Mabel MacCauslan had never seen Frank J. Gould come from the bedroom of the woman named, in that apartment house or elsewhere, of which the defendant well. knew.

Upon the trial of the defendant, upon the indictment aforesaid, the jury rendered a verdict of guilty, and our examination of the evidence given on behalf of the People has led us to conclude that it amply sustains the verdict. It, however, appeared that at the time of the attempted suborning of Mabel MacCauslan, the complaint in the divorce action had been recently served, and the period within which plaintiff had the right to serve an amended complaint had not yet expired, and that the answer of the defendant to such complaint was not served until seven days thereafter. It further appeared that the complaint, as it then stood, alleged that the defendant on the 25th day of July, 1905, while cruising on