Dissenting opinion, per HAIGHT, J. [Vol. 196. the yacht Helenita, entered the harbor at North Sydney, Cape Breton, Dominion of Canada, and there committed. adultery with a woman, whose name was to the plaintiff unknown, and that no other misconduct of the defendant was therein charged. The appellant now insists that the attempted subornation of perjury of which she had been convicted was not committed, for the reason that the false testimony solicited by her, to be given by Mabel MacCauslan, was not material upon the allegation alleged in the complaint. That in order to make the false testimony material a complaint must allege misconduct on the part of the defendant at the time and place and with the person charged in the complaint. The question thus presented is not only interesting but of great public importance. For if the contention of the appellant is sound, it discloses a very serious defect in our criminal statutes. Persons desiring a dissolution of their marriage contracts may themselves, or through private detectives or other persons, manufacture evidence and procure others to falsely swear to transactions that never took place without fear of punishment, if such suborning is done before an issue joined in an action brought. A person committed under a charge of murder may through his agents suborn witnesses with impunity to falsely testify to an alibi, or other matters constituting a defense, if it is only done before indictment is found, for until then it would not be material to any pending issue in the criminal action. And this may be done with reference to every charge throughout the entire catalogue of crimes, without the power to prosecute the suborning person for any crime whatever. The Penal Code, which was in force at the time of the transaction charged in the indictment, provides, in substance, that a person who swears or affirms, in an action, or special proceeding, or upon any hearing or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered, willfully and knowingly testifies falsely, in any material matter, is N. Y. Rep.] Dissenting opinion, per HAIGHT, J. guilty of perjury. (Section 96.) "A person, who willfully procures or induces another to commit perjury, is guilty of subornation of perjury." (Section 105.) "An act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime." (Section 34.) It will thus be seen that in order to constitute perjury the false testimony must be material. This is the provision. of the Code and it was one of the requirements of the law. Was, therefore, the false testimony which Mabel MacCauslan was solicited to give material within the requirements of the provision of the Code referred to? In construing these provisions it is provided that "The rule that a penal statute is to be strictly construed does not apply to this Code or any the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law." (Section 11.) of As we have seen, the action that was brought by Mrs. Gould against her husband was to obtain a divorce upon the statutory grounds. At the time of the transaction in question the complaint had been served, but the time had not expired in which she had the right to serve an amended complaint. No issue had then been joined by the service of an answer. The. only misconduct charged against the defendant, as the complaint then stood, was alleged to have occurred at North Sydney. If, therefore, the materiality of the false testimony which the defendant sought to have given pertained only to issues actually framed by the pleading, then effect must be given to appellant's contention. But to my mind the materiality is not so limited. Lord COKE, in 3rd Inst. 165, defines perjury as follows: "It is 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." What was the cause in question? Mrs. Gould sought a divorce. She was entitled to it if she could produce evidence which. would establish the statutory offense. The evidence which Dissenting opinion, per HAIGHT, J. [Vol: 196. the defendant undertook to have the MacCauslan girl fasely deliver would, if true, have shown the statutory offense and thus establish the "cause in action." It must be borne in mind that the provisions of the Code must be construed according to the fair import of their terms to promote justice and effect the objects of law. The limit of the word "material," to issues actually joined in pleadings, is not the promotion of justice nor was it the legislative intent. No such defect in our criminal law was ever intended or supposed to exist. The appellant further contends that the testimony was not competent and could not be received in evidence under the issues as they stood. Possibly not. But the right to amend the complaint still existed, and as soon as the new evidence, or what was claimed to be evidence, was discovered, it was a simple matter to allege it in an amended pleading. It was competent evidence to be given in an action for a divorce and was most material, if the pleading had given the proper grounds. In the case of Reg. v. Phillpotts (2 Den. Cr. Cas. 302) a paper had been produced which the defendant had falsely sworn was a copy of a record. It was not received in evidence, for the reason that the record was the better evidence. In reviewing the conviction of Phillpotts for perjury, his counsel contended, as the appellant's does here, that the question was as to whether the evidence to which the defendant swore was material to the issue then being tried, and inasmuch as it was not admitted in evidence. it was immaterial. It was held by Lord CAMPBELL, C. J., all the rest of the justices concurring, that the circumstance that the evidence was inadmissible did not affect the question of perjury as it could not purge the false swearing; that if the evidence of the prisoner had been received it would have been material to the issue and, consequently, the false oath of the prisoner amounted to perjury. In Reg. v. Gibbons (9 Cox Cr. L. Cas., 105) it was held that, although evidence was inadmissible in point of law, yet having been admitted and being relevant to the credit of N. Y. Rep.] Dissenting opinion, per HAIGHT, J. a material witness in the cases, perjury could be assigned upon it. COCKBURN, C. J., in delivering the opinion, refers to the case of Reg. v. Phillpotts with approval, and says that "although in point of strictness the evidence was open to objection, yet it does not lie in the mouth of the defendant to say that the question was not one as to which he was not bound to speak the truth." In State v. Waddle (100 Iowa, 57; 69 N. W. Rep. 279) the statute provided that "If any person endeavor to incite or procure another to commit perjury, though no perjury be committed, he shall be punished." It was held that the state need not show that there was in fact a case pending. In the case of Chamberlain v. People (23 N. Y. 85) the husband, in a case for divorce, was permitted to testify that he had no sexual intercourse with his wife, and yet she had borne a child. It was held that, although in an action between husband and wife, under the provisions of the Code, neither was a competent witness against the other to prove nonintercourse. Yet, inasmuch as the evidence had been given, the husband was guilty of perjury. My attention has been called to no case in this state, nor in our sister states, in which the precise question here presented has been determined. There are two or three decisions in other states which hold that an action must be pending under the phraseology of the statute existing in their respective states. Under our statute, as we have seen, a person who testifies to any material matter to be true which he knows to be false in an action or a special proceeding or upon any hearing or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, is guilty of perjury. The suborning of a witness must of necessity precede the actual delivering of the false testimony, and the attempt to suborn must precede the actual consummation of the crime of suborning. There is nothing in the provisions of our statutes that makes the attempt to suborn a witness depend upon the accuracy of the pleader, provided the testimony is material upon the Dissenting opinion, per HAIGHT, J. [Vol. 196. results sought to be obtained in the action. As to that, I have already shown that the evidence, if true, would have been sufficient to authorize the granting of a divorce. was, therefore, in my judgment, material within the meaning of the Code. It As we have seen, the charge in this case was an attempt to commit the crime of subornation of perjury. It is not claimed that the crime of perjury was committed, nor even that subornation of perjury was consummated. It was only an attempt at subornation. It does not, therefore, matter whether all of the acts constituting perjury or subornation of perjury were present. The offense of attempting to commit a crime of perjury, as defined by the statute, depends upon the mind and intent of the person attempting the act and not upon the result, or the fact that in that particular instance it could not be perpetrated. So that a person may be convicted of an attempt to commit a larceny, even though there may be no property to steal. So also a person may be convicted of an attempt of extortion, even though the person upon whom the attempt was made was under no duress or fear, but instead was acting in connection with the police in order to bring about the extorter's arrest and conviction. (People v. Moran, 123 N. Y. 254; People v. Gardner, 144 N. Y. 119.) In the former case, the defendant was passing around among the people gathered in a crowd and was seen to thrust his hand into a pocket of a woman and withdraw it therefrom empty. RUGER, Ch. J., in delivering the opinion of the court, said, "We are of the opinion that the evidence was sufficient to authorize the jury to find the accused guilty of the offense charged. It was plainly inferable from it that an intent to commit larceny from the person existed, and that the defendant did an act tending to effect its commission, although the effort failed. The language of the statute seems to us too plain to admit of doubt, and was intended to reach cases where an intent to commit a crime and an effort to perpetrate it, although ineffectual, coexisted. Whenever the animo furandi exists, followed by acts apparently affording a prospect of success |