People v. Trumpbour — 10 N.Y. Crim. 198

Majority

p. 198

Supreme Court-General Term-Third Department.

June 1, 1892.

PEOPLE v. MATTHEW T. TRUMPBOUR.

(45 St. Rep. 563; 64 Hun, 346.)

Headnote

:Pe?jury—Savings bank—Report.

Where an assistant treasurer of a savings hank assumes to he one of the two proper persons to verify the report, and does so, he cannot subsequently claim that he was incompetent to take the oath, and was not the proper person to verify it, in order to escape the consequences of a false verification.

(Appeal from judgment of oyer and terminer, sustaining demurrer to indictment for perjury.

J. N. Vanderlyn and A. Schoonmaker, for appellants.

William Lounsbery and D. M. De Witt, for respondent.

This is an appeal from the judgment of the Ulster county oyer and terminer, sustaining a demurrer to the indictment herein.

. The case is similar to the cases against James E. Ostrander argued before us at this term, except that while in those cases it was alleged that Ostrander was the treasurer of the Ulster County Savings Institution, and one of its two principal officers, in this case it is alleged that the defendant Trumpbour was the assistant treasurer and one of its two principal officers, and acting as such.

The reports upon which the several indictments were founded were made at different times. ) -i 'St.- - ft

It is claimed by the defendant that inasmuch as the statute provides that the report shall be verified by the two principal officers, and it appears upon the face of the indictment that the 'defendant was the assistant treasurer, that, therefore, he was not one of the two principal officers, that he is not one of the persons required by the statute to make the affidavit or verifi'Ca/tion, that his action in making it was extra-judicial, and that

p. 199

an indictment against him for perjury in making such verification will not lie.

Whether he was or was not one of the two principal officers of the bank, I think is of no consequence; assuming that he was not, still in my opinion his contention was unfounded.

A report was required by law to be made and verified; he assumes to be one of the two proper persons to verify it, and does so. He cannot now come forward and claim that he was incompetent to take the oath, that he was not the proper person to verify the report, so long as in fact he did verify it. People v. Bowe, 34 Hun, 528 ; Chamberlain v. People, 23 N. Y. 85 ; Howard v. Sexton, 4 Coms. 157; Pratt v. Price, 11 Wend. 128 ; Mackin v. People, 56 Am. 167; Penal Code, § 98.

The other questions under the indictment have been discussed in the Ostrander case decided at this term.

The judgment of the oyer and terminer allowing the demurrer should be reversed.

PUTNAM, J., concurs.