People v. Martin — 77 A.D. 396

Majority

p. 396

The People of the State of New York, Appellant, v. Robert L. Martin and Harry Velthusen, Respondents.

Headnote

Perjury—section 96 of the Penal Code is not limited to affidavits required by the laws of the State of New York—indictment charging two persons with the crime of perjury, and also that one of them counseled the acts of the other — it chargee both as principals with the commission of one offense.

Section 96 of the Penal Code, which provides: “ A person who swears * * *■ that any * * * affidavit * * * by him subscribed is true * * * on any occasion in which an oath is required by law * * * or may lawfully be administered, and who * * * on such * * * occasion willfully and knowingly * * * deposes * * * falsely in any material matter, or states in bis * * * affidavit * * * any material matter to be true which he knows to be false, is guilty of perjury,” is not limited in its operation to affidavits and oaths required by the laws of the State of New York, but. extends to an oath or affidavit required by the laws of a sister State and authorized by the laws of such sister State to be taken in the State of New York.

An indictment charging two persons with the crime of perjury, which first avers-the commission of the offense by both persons, and then avers that one of them was actually present, aiding, counseling, advising and procuring the said acts, oaths and willful purposes of the other, does not allege the commission of two offenses, but simply the commission of a single offense in which both the defendants were principals.

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of General Sessions of the Peace in and for the city and county of New York, entered in the office of the-clerk of said court on the 9th day of June, 1902, allowing a demurrer filed by each of the defendants to the indictment charging them with the crime of perjury.

The indictment is as as follows:

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Court of General Sessions of the Peace, In and For the County of New York.

“ The Grand Jury of the County of New York, by this indictment, accuse Robert L. Martin and Harry Velthusen of the crime •of perjury, committed as follows :

“ Heretofore, to wit, on the 15th day of May, in the year of our Lord one thousand nine hundred and one, the said Robert L. Martin and the said Harry Yelthusen, each late of the Borough of Manhattan, of the City of New York, in the County of New York, aforesaid, were respectively, the said Robert L. Martin, president, and Harry Yelthusen, secretary, of the Delaware Surety Company, a corporation duly organized and existing under the laws of the State of Delaware.

“ And then and there and on the day and year aforesaid it was required by law and by the general corporation law of the State of Delaware that the president, with the secretary or treasurer, of ■every corporation organized and existing under the laws of the said State of Delaware should, upon payment of the capital stock of such corporation, make a certificate, stating whether the same had been paid in in cash or by the purchase of property, and stating also the total amount of capital stock paid in, which certificate should be signed and sworn, or affirmed to by the president and secretary, or treasurer, and further, providing that the same said certificate, so signed and sworn, or affirmed to, should be filed in the office of the Secretary of State of the said State of Delaware.

“ And then and there and on the said 15th day of May, in the year aforesaid, one Thomas Adam, Jr., was a notary public duly appointed, sworn and qualified in and for the County of New York, •aforesaid, and thereby duly authorized and empowered to administer oaths and take affidavits;

“And then and there, and on the said 15th day of May, in the year aforesaid, at the borough and county aforesaid, the said Robert L. Martin, as president, as aforesaid, of the said corporation, as aforesaid, and Harry Y elthusen, as secretary of the said corporation

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aforesaid, appeared before the said Thomas Adam, Jr., notary publie as aforesaid, and did then and there, each in his own proper handwriting duly subscribed, the said Robert L. Martin, as president,, and the said Harry Yelthusen, as secretary, the certain certificate,, so as aforesaid required and provided for by law, and by the said general corporation law of the said State of Delaware, which said certificate was then and there as follows, to wit:

“We, Robert L. Martin, President, and Harry Yelthusen, Secretary of the Delaware Surety Company, a corporation created by and under the laws of the State of Delaware, do hereby

“Certify that the entire capital stock of the Delaware Surety Company, said corporation, of one million dollars has been paid in. in cash.

“New York, May 15th, 1901.

“DELAWARE SURETY COMPANY,

“ by Robert L. Martin,

“ President.

“Harry Yelthusen,

“ Seeretary.

(( Delaware Surety Company

“ Incorporated, 1901.

“ [Ten cent revenue stamp cancelled.]

“ And did then and there produce, present and exhibit the same said written instrument and certificate as aforesaid to the said Thomas Adam, Jr., notary public as aforesaid, and he, the said Robert L. Martin, and he, the said Harry Yelthusen, did then and there, at the borough and county aforesaid, on the said 15th day of May, in the year aforesaid, produce, present and exhibit to the said Thomas Adam, Jr., notary public as aforesaid, a certain affidavit in writing, duly signed and subscribed by him, the said Robert L. Martin, in his own proper handwriting, touching the truth of the said certificate aforesaid, so subscribed by them, the said Robert L. Martin and the said Harry Yelthusen, as aforesaid, which said affidavit in writing was then and there as follows, to wit:

((

“(Robert L. Martin and Harry Yelthusen being severally duly sworn, depose and say, each for himself: That they have read the

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foregoing certificate and know the contents thereof, and the same, is true to their own knowledge.

“ROBERT L. MARTIR,

“HARRY VELTHFSER.

“ Thomas Adam, Jr.,

“ Notary Public N. Y. Co.

“ And it was then and there, and on the said 15th day of May, itithe year aforesaid, required and provided for by law, and by the said general corporation law of the said State of Delaware, that the-said certificate, so made, signed and subscribed by the said Robert L. Martin as president as aforesaid, and the said Harry Velthusen,. as such secretary, as aforesaid, should be sworn or affirmed to by each of them before the same should be filed in the office of the-Secretary of State of the said State of Delaware.

“ And thereupon, and at the time and place aforesaid, and on the-day aforesaid, before Thomas Adam, Jr., such notary public as. aforesaid, at the borough and county aforesaid, the said Robert L. Martin was duly sworn and did take his corporate oath by and before the said Thomas Adam, Jr., such notary public aforesaid,, touching the truth of the matters contained in the said affidavits so, as aforesaid, in writing, and subscribed by him, the said Robert L. Martin, the said Thomas Adam, Jr., such notary public, having full and competent authority "and power to administer such oath to-them, and each of them, in that behalf;

“ And the said Robert L. Martin, being so sworn, as aforesaid, upon his corporal oath aforesaid, did then and there, and by the said affidavit in writing, so signed and subscribed by him as aforesaid, falsely, corruptly and knowingly swear and depose that each, and every matter therein stated was true to his own knowledge.

“ And thereupon, and on the day and in the year aforesaid, at the borough and county aforesaid, the said Robert L. Martin did deliver the said certificate and the said affidavit, so as aforesaid signed, subscribed and sworn to by him, the said Robert L. Martin,,

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to another, with intent that it be uttered and published as true; -and the same said certificate and affidavit were thereafter filed in the office of the Secretary of State of the said State of Delaware, the said affidavit having been signed and sworn to by the said Harry Velthusen, the said secretary of the said corporation, who liad theretofore, as aforesaid, subscribed the said certificate.

“ Whereas, in truth and in fact, there was not then and there, and there had not been paid in in cash one million dollars, as, in ■and for payment of the capital stock of the said Delaware Surety ■Company, the said corporation, as aforesaid, as they, the said Robert L. Martin and the said Harry Velthusen, and each of them, then and there well knew j

“ And whereas, in truth and in fact, the said Robert L. Martin •did not then and there know that there was or had been paid in, in ■cash, one million dollars, as, in and for payment of the capital stock of the said Delaware Surety Company, the said corporation as ■aforesaid, as they, the said Robert L. Martin and Harry Velthusen, then and there well knew.

“And the said Harry Velthusen, then and there and at all the times aforesaid, at the said borough and county aforesaid, and on the day aforesaid, was actually present aiding, counseling, advising •and procuring the said acts, oaths and wilful perjury, as aforesaid, •on the part of the said Robert L. Martin.

“ And so the Grand Jury aforesaid do say that the said Robert L. Martin and the said Harry Velthusen, in the manner and form aforesaid, and by the means aforesaid, did wilfully, feloniously, corruptly, knowingly and falsely commit the crime of wilful and corrupt perjury ; against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.

“EUGENE A. PHILBIN,

“District Attorney

Howard 8. Gans, for the appellant.

Franklin Bien, for the respondents.

It appears by the record upon this appeal that the learned recorder made disposition of the question presented by the demurrer, based

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upon the conclusion that the crime of perjury, as defined in section 96 of the Penal Code, had not been committed.

The reasoning which led to his conclusion in this respect seems to have been that the oath to the certificate, averred to have been taken in the indictment, was not required by any law of the State of New York, and did not, therefore, fall within the language or meaning of the statute, and that not being in pursuance of, or authorized by, the laws of this State, the oath thereto was not lawfully administered ; and, consequently, the crime of perjury could not be predicated thereon.

Eliminating those provisions of section 96 of the Penal Code which have no applicability to the offense as it is averred to have been committed in the indictmént, the law defining perjury reads: “A person who swears * * * that any * * * affidavit * * * by him subscribed is true * * * on any occasion in which an oath is required by law * * * or may lawfully be administered, and who * * * on such * * * occasion willfully and knowingly * * * deposes * * * falsely in any material matter, or states in his * * * affidavit * * * any material matter to be true which he knows to be false, is guilty of perjury.”

It is averred in the indictment that by the general corporation laws of the State of Delaware it was required by law that the president with the secretary, or treasurer, of every corporation organized and existing under the laws of such State, should, upon payment of the capital stock of the corporation, make a certificate, stating whether the same had been paid in in cash, or by purchase of property, and stating also the amount of the capital stock paid in, which certificate should be signed and sworn, or affirmed to, by the presisident and secretary, or treasurer, and after being so signed and sworn to, should be filed in the office of the Secretary of State of the State of Delaware. By further averments it is made to appear that this certificate was in conformity to the law of such State, and that after having been so taken, as averred in the indictment, it was filed in the office of the Secretary of State of the State of Delaware.

It is evident, therefore, that these averments of the indictment are sufficient to show that the oath was required by the law of

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Delaware, and if such certificate, by the laws of that State, was authorized to be verified and sworn -to in the jurisdiction of a sister State, and could be filed with the Secretary of State when so taken, with the same force and effect as though - taken in the State of Delaware, then it would .clearly appear that such an oath might be lawfully administered within this State. While it is not averred in terms in the indictment that such an oath is authorized by the laws of the State of Delaware to be taken in a foreign jurisdiction, and, when properly authenticated, filed therein with the same force and effect as though taken within the jurisdiction of that State, yet it is averred that an oath of this character was required, that it was taken and subsequently filed with the officer as authorized by law. The fair inference which arises from the averments of the indictment in this respect is that as the certificate was received and filed in the State of Delaware, it was, therefore, effectual to accomplish the purpose for which it was taken and filed, as it will not be presumed that it would be received and filed in such office unless it was legally sufficient to accomplish the purpose which the filing required.

By subdivision 1 of section 85 of the Executivé Law (Laws of 1892, chap. 683, as amd. by Laws of 1894, chap. 88) it is provided that a notary public has authority to exercise such powers and dutise as by the law of nations and according to commercial usage, or by the laws of any other government, State or country, may be performed by notaries. And" by subdivisiori 2 such notary is authorized to administer oaths and affirmations and take affidavits.

It is, therefore, evident that the notary was authorized to take the affidavit attached to the certificate in question, as it presented an application to him to act in his official capacity, and the oath required to be taken was such as he might lawfully administer. It was the contention below, and is urged by the respondents on this appeal, that section 96 of the Penal Code must be construed as authorizing' only the taking of an affidavit where such affidavit was required by the laws of this State, and if not so required, perjury could not be predicated thereon, even though it be conceded to be false. Such is not the language, however, of section 96, which we have heretofore quoted. Therein the provision is that the affidavit so subscribed and taken is true on any occasion in

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which an oath is required by law. If the provision of the statute stopped here, it might well be argued that it is limited in its operation to such affidavits and oaths as are required to be taken by the laws of this State, and could not be extended so as to cover an oath required to be taken for use in a foreign jurisdiction, but the definition does not stop here. Its further language is “ or may lawfully be administered.” This language is in the disjunctive and indicates clearly that two conditions are contemplated. One where the oath is required by the law's of this State, and the other where it may lawfully be administered. To limit this language as applying-only to an oath required by the law of this State is to render nugatory and of no effect the provision in relation to those oaths which may be lawfully administered. It is evident that if the law of the State of Delaware authorized the taking of the affidavit averred in the indictment within this jurisdiction, and when so taken force and effect was given to it in such State, then it would seem to follow that the oath attached to such affidavit might be lawfully administered within the jurisdiction of this State, as the exercise of such authority by the notary is authorized by the statute to which we have called attention. Therein he is authorized to administer oaths and affirmations and take affidavits. The act upon the part of the notary, therefore, was a lawful act and would seem to come fairly within the terms of the statute and be an affidavit to which he might lawfully administer the oath. This brings the affidavit not only within the spirit of the enactment, but also within its literal language. Such language is to be construed as meaning something, and force and effect is required to be given to it. If it be held to mean only where the oath is required to be administered by the laws of the State, then such language was unnecessary and meaningless, as it was not needed to define such authority. The language theretofore used did that clearly, and if that was all the whole clause meant, then the addition is surplusage and adds nothing to the particular requirement. Its language, however, is broad enough in its terms to embrace the case presented by the affidavit averred in the indictment, and if it can be so construed* it is evident that it ought to be. So to construe it does no violence to the provision, but, on the contrary, gives force and effect to all of the language used therein.

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The ordinary rule of construction requires this interpretation. Indeed, if it be strictly construed, such construction warrants the interpretation we have placed upon it. (Black Interp. Laws, 282, ■and cases cited.)

By section 11 of the Penal Code the court is required to construe the provisions thereof according to the fair import of their terms to promote justice and effect the objects of the law.

The present case seems to present every element authorizing a liberal interpretation. The language of the Code seems to authorize it, and in order to effectuate the objects of the law and promote justice, it seems to be required. If force and effect is to be given within the State of Delaware to the affidavit which the indictment presents, and we think such is the fair construction, then it follows that such corporation as is averred to exist in the indictment might become entitled to carry on business within this State when it has conformed to our laws. It may, therefore, come into this State with a certificate, the product of a false oath taken herein, that it Las a capital stock of $1,000,000 paid into its treasury in cash, when in fact it has no such sum, and thereupon be held out by our laws to be responsible. It does not need argument to demonstrate that such a result would permit of the perpetration of the grossest frauds upon the citizens of this State. It would also follow that there could be no prosecution for the offense committed in the foreign jurisdiction, unless the persons taking the oath went into such State and in person filed the affidavit, or unless they voluntarily went within the jurisdiction after it was filed. If they remained within this State and procured the affidavit to be filed by sending it to the secretary or otherwise, and did not at the time of filing go within the jurisdiction of the State, they could not be extradited from this State for such offense, although the affidavit was wholly false. (People ex rel. Corkran v. Hyatt, 172 N. Y. 176 .) If, under such circumstances, they could not be punished for the crime of perjury committed within this State, or at all, unless they voluntarily surrendered themselves to the foreign jurisdiction, they would receive immunity from punishment, although their act was an offense against the laws of the foreign jurisdiction and worked mischievous results upon the citizens of this State. The courts ought not to be astute under such circumstances in unduly limiting the effect, of

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penal provisions, and when a case is found which comes within the letter of the statute under a reasonable interpretation and entirely within its spirit it should be upheld. Ror are we lacking in authority in support of the interpretation of which we think this statute susceptible. At common law perjury was defined to be the taking of “ a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a course of justice, swears absolutely in a matter of some consequence to the point in question, whether he believed or not.” (2 Archb. Cr. Pr. & PI. [Pomeroy’s Notes] 1714.)

The statute of the State of Massachusetts codifies and adopts this definition. (Pub. Stat. Mass. [1882], p. 1158.)

In Commonwealth v. Smith ( 11 Allen, 243 ) a case was presented where the defendant was charged with the crime of subornation of perjury in procuring one Rorthrup to commit the crime of perjury in giving false answers to certain questions propounded to him upon a commission, issued out of the Superior Court of the city of Rew York in an action pending therein, which was at issue, to take testimony in the State of Massachusetts. For subornation of perjury committed in the execution of the commission the defendant was indicted, tried and convicted. Upon an appeal from the judgment of conviction it was urged in his behalf, among other things, that the commissioner was not authorized by the law of Massachusetts to take such depositions. The general statute of Massachusetts provided that such a commission might be taken before a justice of' the peace in the State, and it was held that as the deposition was executed before a person authorized to administer oaths by the law of the State of Massachusetts the crime of perjury could be committed, even though there was no law specially authorizing such an oath to be administered when the testimony so given was to be used in a foreign jurisdiction. The oath taken in the execution of the commission was held to be taken in the course of justice, and as a justice of the peace was authorized to administer the oath, the crime of per jury could be predicated thereon: The two cases in principle are precisely similar. In the indictment now before us we have a case where the officer taking the affidavit was authorized by express law to take an affidavit. When so taken it might be and was used in evidencing an act required by law to be evidenced in a foreign

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jurisdiction. If perjury could be predicated of the false oath given upon the execution of the deposition, so in like manner perjury can be predicated of the taking of the false affidavit, as both rest upon the same principle and both were taken to evidence a fact in a foreign jurisdiction, required by the law of such foreign State. The same principle was decided adversely to the contention of the respondent in Stewart v. State of Ohio ( 22 Ohio St. 477 ). Those cases are decisive in principle of the interpretation which we have placed upon this statute.

The objection that the indictment is bad in charging in a single count two separate and distinct crimés is unavailing. The indictment avers the offense against both persons, and then avers that one of them was actually present, aiding, counselling, advising and procuring the said acts, oaths and willful purposes of the other; this does not constitute two offenses, but one in which both are principals. (Penal Code, § 29.) ‘

The only doubt which presents itself to our minds in the construction of the indictment lies in its failure to aver in terms that the law of the foreign State authorized the execution of the certificate and the affidavits, as is averred in the indictment, in a foreign jurisdiction. This difficulty we have already adverted to, reaching the conclusion that as it was filed and apparently acted upon by the officer charged with receiving and filing it in the State of Delaware, it would authorize proof that it was so authorized by the laws of that State.

In sustaining a demurrer to an indictment the judgment becomes a bar to another prosecution unless, by direction of the court, the case be resubmitted to the same or another grand jury. (Code Orim. Proc. § 327.)

The decision of the learned recorder proceeded upon the ground that the defect could not be cured, and, therefore, presumably failed to give a direction for its resubmission. We find no authority which precludes the public prosecutor from resubmitting the case to the same or another grand jury, except where the demurrer has been allowed, otherwise there is no objection of which we are aware which interposes to prevent the resubmission of the case to a grand jury at any time before the Statute of Limitations has run against the offense.

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If it be deemed desirable by the public prosecutor to eliminate this question from the indictment, if it be susceptible of elimination, he may do in and about the matter as he is advised.

We conclude that this indictment is a good indictment and states the offense of perjury committed against our laws.

It follows, therefore, that the order allowing the demurrer and the judgment based thereon should be reversed and the defendants directed to plead over to the indictment.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., -concurred.

Order and judgment reversed and defendants directed to plead over to the indictment.