People v. Tatum

The defendant has been indicted by the grand jury of the county of Queens for the crime of perjury.

He has demurred to the indictment, assigning as the ground thereof that it appears upon the face of the indictment that the facts stated do not constitute a crime.

The indictment is framed substantially as follows: “ That heretofore upon a hearing of a proceeding before this grand jury in the matter of the investigation of the Department of Buildings in and for the borough of Queens, city and State of Hew York, entitled ‘ The People of the State of Hew York against John Doe,’ held at the jail building, in the first ward of the borough of Queens aforesaid on or about the twenty-third

The citizen may not be put upon his trial for an alleged criminal offense, except by due process of law, and may not be called to plead upon the merits, unless the charge against him

The elements of the crime of perjury to be alleged and proved, are 1. A judicial proceeding, or course of justice. 2. The defendant having been sworn to give evidence therein. 3. His testimony. 4. Its falsity. 5. Its materiality to the issue, or point of inquiry. 2. Bishop Crim. Pro. (3d ed.), § 901.

The first specification of the several elements referred to is technically characterized in law as mere introduction or inducement, and need not be charged directly or in detail, but may be alleged in general terms. Id., § 905; Code Grim. Pro., § 291.

The remaining specifications of the several elements constitute, together, the substance of the crime (the gist of which is the falsity of the testimony), and the facts in respect thereto must be stated with definiteness and particularity; and this may, and should, be done plainly and concisely, without unnecessary repetition.

In the indictment in question, we find sufficient allegations that the defendant was sworn; that he testified; and the particulars of his testimony; and we also find a general allegation of its materiality, which ordinarily might be deemed sufficient in connection with an unexceptionable averment of jurisdiction in the court or body before whom the oath alleged to be false was taken.

The indictment, however, states no fact showing wherein the testimony is false. The allegations are that the defendant “ did feloniously, willfully and knowingly testify falsely in a material matter then and there under investigation; ” and again, that he did in like manner “ falsely state in his testimony that he knew,” etc. These are but conclusions and not allegations of facts. The indictment should state wherein the matter was false, commonly called assigning the. perjury. This is, as has been stated, the gist of the offense, and the averment in respect thereto should be direct and specific, not in terms of uncertain meaning, or by way of implication. Simply to say that the defendant

In the approved form of pleading, after setting out the substance of what was sworn to, the indictment proceeds: “ Whereas in truth and in fact; ” stating wherein such matter was false. An added allegation in such form, setting forth what the truth or fact was, would show wherein the falsity consisted, and advise the defendant of the particulars of the offense in that regard and indicate also the materiality of the testimony charged to he false.

From the foregoing considerations, it follows that in that regard the acts charged in the indictment under consideration as the crime of perjury are not plainly and concisely set forth, and are not stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.

It is also urged against the sufficiency of the indictment that it fails to set forth that the grand jury was engaged in inquiring concerning any offense against the criminal law when the defendant gave the alleged false testimony, or that the matter then before that body was within the purview of its duty and powers, as prescribed by law, and that it does not appear that such testimony was in any wise material or relevant to any competent inquiry, or that the defendant witness was sufficiently apprised thereof.

As we have stated above, in order to constitute the offense, there must exist and be charged a judicial proceeding or course of justice, and the giving of false testimony material to the point of inquiry.

It is well settled that, if the testimony is in no sense material, the giving of it does not constitute perjury, even though the testimony is false. Also, that the testimony must have been given in an action, proceeding, hearing, inquiry or on any occasion in which an oath is required by law. Such is the language of the statute defining the crime of perjury. Penal Code, § 96.

The general powers and duties of a grand jury are to inquire into all crimes, committed or triable in the county, and to present them to the court. Code Grim. Pro., § 252. They also have imposed upon them the duty by express command of the statute to inquire: 1. Into the case of every person imprisoned in the jail of the county on a criminal charge, and not indicted. 2. Into the condition and management of the public prisons in the county. 3. Into the willful and corrupt misconduct in office of public officers of every description in the county.

It is fairly inferable from the indictment that the grand jury, under the guise of a fictitious defendant, was engaged in a somewhat general investigation into the affairs of one of the governmental departments of the borough of Queens, and was not making inquiry concerning the commission of a crime by any particular person. While it cannot also he inferred, it may bo conjectured therefrom that they were seeking to ascertain concerning possible or even probable violations of the law by officials in that department. It is the right and duty of the grand jury to promptly and fearlessly inquire into the conduct of all public officials in the county, and as incidental thereto it may he necessary to enter into a somewhat extended investigation of tho affairs of a department of the government; hut this course will ordinarily not be taken unless the grand jury has reason to believe that a public official has so far failed in his trust as to-have abused it willfully and corruptly. A grand jury is not

At common lav/ it was necessary that an indictment for perjury should set forth at length the proceedings in which the alleged perjured testimony was given. This is no longer required, for by statute it is now sufficient to set forth the substance of the controversy or matter in respect to which the alleged crime was committed, and in what court or before whom the oath alleged to be false was taken. Code Crim. Pro., § 291.

The indictment in question refers to what may be deemed a general inquiry and does not specify the subject under investigation, which may or may not have been an alleged crime, or the willful and corrupt misconduct in office of a public official. That it was “ the matter of the investigation of the Department of Buildings ” even though entitled “ The People v. John Doe,” is not sufficient, in that it does not disclose that the testimony alleged to have been falsely given was material.

“ To constitute perjury, the false testimony must be given concerning a material matter under investigation. Wood v. People, 59 N. Y. 117 ; People v. Root, 94 App. Div. 84 . The purpose of an indictment is to enable the defendant to prepare for trial, and to prevent a second indictment for the same offense. People v. Corbalis, 178 N. Y. 516 ; People v. Dumar, 106 id. 502; Phelps v. People, 72 id. 334; Wood v. People, 53 id. 511. If it does not do this, it is not good pleading. The indictment does not state ‘the substance of the controversy or matter ’ being investigated.

“ A grand jury undoubtedly has large inquisitorial powers

It follows that there must be judgment for the defendant allowing the demurrer.

, But inasmuch as the court is of the opinion that the offense charged in the indictment was probably committed upon a proper inquiry by the grand jury concerning the misconduct of public officials in the Bureau of Buildings for the borough of Queens, and the inquiry was concerning a material matter, and that the relevant facts going to make up the offense sought to be charged exist, and is also of the opinion that the objections on which the demurrer is allowed may be avoided in a new indictment, it is directed that the case be submitted to the next grand jury.

Judgment accordingly.