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People v. Bowe

3 N.Y. Crim. 149 Court Supreme Court—General Term—First Department. English

Decision Majority — *156 Daniels, J. · Dissent — Brady, J. [Dissenting.]

Contents

Majority

p. 149
Supreme Court—General Term—First Department.
PEOPLE v. BOWE.
January, 1885.

Headnote

Perjury—Support oe prisoners in civil proceedings—Contract therefor, L. 1875, oh. 251; L. 1877, ch. 417 —Code Civ. Proc. 112—Verification of affidavit BY IMPROPER PERSON-PENAL CODE, §§ 96, 98.
The indictment herein alleged that a contract was entered into, in 1883, between the board of aldermen, acting as the board of supervisors of New York county, and the sheriff, for the support of the persons confined in the county jail, in civil proceedings, who should make oath of inability to support themselves, and for the payment to the sheriff of seventy-five cents per day for each of such persons; that under the contract an account was made out against the county, stating the names, number of persons and time for which such support was furnished, to which defendant, as warden or jailer of the jail made oath, to the effect that the same was true, and that the support of the persons therein named had been provided for them while they were confined in such jail, and that they had made oath of their inability to support themselves. The indictment then charged that the account was not a true list of such persons and that they had not taken the required oath, which defendant well knew. And upon this the charge of perjury was made.
Held, on demurrer, that the indictment must be sustained, and that it appears on its face that the facts stated constitute the crime charged. Further held, that the indictment was not too general in its allegations as to the fact that the oath was false.
Though the act providing for such contract and verification—viz., ch. 251, Laws 1875—related by the terms of section 4 thereof, to the board of supervisors of New York county, as then constituted, yet it applies to the board of aldermen, under ch. 304, Laws 1874, empowering the board of aldermen to exercise the authority and discharge the duties of said supervisors.
The effect of the repeal of §§ 1 and 4 of ch. 251, Laws 1875, by § 49, ch. 417, Laws 1877, and the enactment in their stead of § 112, Code Civil Procedure, was to leave unchanged the authority of the board of
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aldermen to make such contracts as the one involved ; § 2 of the first named act, and § 112 of the Code forming a complete system, the same in substance and effect as the former act, and applicable to all the counties of the state except Kings county.
That § 2 of the Law of 1875 requires the oath to be made by the sheriff or jailer taking the contract, in this instance the contract being with the sheriff, does not relieve the defendant, the jailer, from the charge of perjury, in knowingly and willfully verifying these false statements.
An oath could be lawfully administered to verify and sustain the account in question, and when so administered it was a deposition, declaration, affidavit or certificate necessary to the prosecution or defense of a private right, and therefore defendant’s false oath was perjury under § 90 Penal Code.
Under § 98 Penal Code, where an oath may be taken, the party or person who takes it, even though it is not given in the course of legal proceedings, cannot protect himself against criminal accountability, by alleging his incompetency to give the deposition or certificate of which the falsehood is alleged.
Appeal from a judgment sustaining a demurrer to an indictment.
Perjury was assigned in the indictment, which was dated April 8, 1884, on an affidavit made on or about December 31, 1883, by the defendant James Bowe, to certain items of an account under the contract described in the opinion.
The indictment coming on to be tried at the Oyer and Terminer of New York county, the defendant interposed a demurrer, on the ground that the facts therein stated did not constitute a crime, and the justice presiding at the trial, Hon. George 0. Barrett, sustained the demurrer, and delivered the following opinion:
“Barrett, J.—The second section of chapter 251 of the Laws of 1875, in my judgment, clearly refers to the sheriff as distinguished from the warden of the jail. The language is : ‘The Board of Supervisors of the counties of this state are authorized and empowered to contract with the sheriff of the said counties, or the jailers of the common jail therein, for the support and maintenance of such persons, etc.’ In other words, a contract may be made with the sheriff, or a contract may be made with the jailer. And then the act proceeds : ‘ Such sheriff or jailer
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shall attach to all bills rendered for such support and maintenance, a list under oath,’ etc. That I think clearly refers to the previous language with reference to the sheriff or jailer. In other words, if the contract is made with the sheriff, he shall attach ; if with the jailer, he shall attach. It does not mean, as is claimed, that if the contract be made with the sheriff, he or his jailer shall attach. It simply means that if the contract be made with the one or the other, the one with whom the contract is made, shall attach.
“ Mow, under that construction of the act, it is clear to my mind, that what was required was a list under the sheriff’s oath, and not that of any other person, and therefore, that the oath of Bowe, the warden, was not the oath required by law. It is suggested that that is a narrow construction, and that it would deprive the public of the best evidence of the facts to be verified. I do not think that this result would follow. On the contrary, under my construction, the sheriff himself is required to know the facts to be verified of his own personal "knowledge. The public has the right to the best evidence from the highest official, certainly from the official with whom they have contracted, and to whom they pay their money. If that official is not personally cognizant of the facts, the penalty is non-payment of his bill. He must acquire knowledge; that is, all there is about it, and he cannot obtain payment of his bill until he has acquired snch knowledge.
“ There is no difficulty about the sheriff finding otit for himself how many persons have taken the oath which entitle him to compensation. There is ho reason why he should shirk the responsibility, nor shield himself under the oath of his subordinate, or his own oath on the hearsay of his subordinate. The true construction of the act, and the one which will afford the greatest protection to the community, is that, the oath of the sheriff himself of his own knowledge is the oath required, and the only oath permitted by law.
“ It results from this view that it is not a general oath or general proof which is required by law. Not mere proof. It is the oath and the oath of one person only. He may or he may not fortify that oath by fifty others, but his oath is what is required. I apprehend that if the comptroller had refused
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to pay this particular bill on the oath of the warden or jailer, and the sheriff had applied for a mandamus to compel its payment, the court would have denied it and said that the bill was not verified as required by law, and that the sheriff must be put to his personal oath before he could get the money. The bill, therefore, was not verified. It is somewhat analogous to the case of a complaint verified by a third party, but which is required by law to be verified by the plaintiff. In such a case the defendant may put in an unverified answer because the verification of the third party is not the oath required by law. It would be an unverified complaint, and consequently an unverified .answer might be served.
“ I have not overlooked section 98 of the Penal Code, which provides that it shall be no defense to an indictment for perjury that the person was not competent to take the oath. That refers to the testimony or affidavit of a witness in some judicial proceeding—a witness who might be objected to but was not, or whose testimony or affidavit might be objected to, but was not. If that testimony be given or the affidavit made, and it be admitted and used and served its injurious purpose, then the witness or affiant is liable to a prosecution for perjury. But that is not applicable to oaths which are extrajudicial or mere idle forms, as here, where the law demands the oath of one man and one man only, to one fact, for one particular purpose, and excludes all others.
“In perjury the law is strict and has always been. We find that under the old practice perjury could not be assigned of an oath taken in a foreign land. We find, too, that it could not be predicated of an oath taken before a surrogate to obtain a marriage license. In a case where a commission was issued to take the testimony of A. B., and O. D. fraudulently personated A. B. before the commissioner, was swórn as A. B., and gave false testimony as A. B., it was held that C. D. was not liable for perjury, because the commissioner was authorized to administer the oath to A. B. alone. The reason for this technical strictness is that perjury was always a felony. The making of a false oath or affirmation which was extra-judicial (and consequently not perjury), was at common law a misdemeanor, if made with intent to cheat the government, or
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pervert the course of justice. Thus the criminal did not go entirely unpunished.
“ In my opinion, therefore, the demurrer should be sustained for the reasons stated, and it will not be necessary to consider other objections to the indictment which have been presented by the defendant.”
Further facts appear in the opinion of the General Term.
Peter B. Olney, district attorney, for the people, appellant.
Edward W. Crittenden, for the prisoner, respondent.
I. The act upon which the indictment is founded, Laws 1875, ch. 251, did not apply to the city or county of New York; and neither the Board of Aldermen of the city of New York, as such, nor the Board of Supervisors of the county of New York, as then constituted, had any power or authority to make the contract alleged in the indictment. Therefore, there is no foundation for the indictment. The charter provided that the Common Council (the Board of Aldermen) should have no power to contract debts, &c., without special authority by act of the Leg. islatnre. By the act in question, special authority was given to the Board of Aldermen to contract with the sheriff for the support of civil prisoners. This authority continued until, by Laws 1877, ch. 417, § 1, 49, it was expressly repealed. The object of this repeal is obvious:—to abolish an anomaly; to exempt the city and county from the operation of the act; and to reduce to the one system provided in the charter all matters relating to claims against either the city or county. By section 112 of the Code of Civil Procedure, the support of civil prisoners who take the oath is made a charge against the (city and) county of New York as well as against other counties. The only difference is that other counties, having a Board of Supervisors, proceed tinder the act of 1875, and the county of New York under the charter.
II. The affidavit on which the indictment is predicated was a voluntary oath, on which perjury cannot be assigned. 1. If the act of 1875 did not apply to the city and county of New York, perjury cannot be assigned upon the affidavit in question, for it was taken under it. The only provision of the charter or of
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law, with regard to oaths in relation to claims against the city, is Laws 1873, ch. 335, § 29, authorizing the comptroller to require any person presenting for settlement an account, &c., to be sworn before him, &c., and when so sworn, to answer orally, &e. 2. If the said act of 1875 did apply to the city and county of Hew York, the'bill should have been presented to, and audited by, the Board of Aldermen acting as the Board of Supervisors. 2 R. S. 7th Ed. 979, § 4, Laws 1874, ch. 304, § 3, p. 360. The affidavit to satisfy the act was that of the sheriff, Mr. Davidson, with whom the contract was made. Being a county charge to be audited by the Board of Supervisors, the affidavit of the person making or presenting the claim was necessary. The defendant neither made nor presented the claim. 1 R. S. 7th Ed. 845, § 24; Laws 1845, ch. 180, § 24; People ex rel. Sherman v. Supervisors, 30 How. Pr. 173 ; People ex rel. Board Health v. Supervisors, 18 Barb. 567 . All statutes relating to county charges should be considered in paria materia. The act of 1875 creating a county charge, it is intended to be audited as all other county charges are. “ Such sheriff or jailer ” clearly refers to the sheriff or jailer with whom the contract is made, inasmuch as the one who makes or presents a county charge must verify it. 3. The affidavit in question was incompetent. As the affidavit required by the law was that of the sheriff, the oath of the defendant was incompetent, immaterial, and evidence of nothing —a nullity. This oath was not in a proceeding before a court or judicial officer, who could rule upon the admissibility of the testimony offered, but before the comptroller, an administrative officer, who could take no evidence but that prescribed by law. 4. The defendant was not “ permitted,’’ within the meaning of section 98 of the Penal Code, to make the affidavit. The word “ permitted,” in a legal enactment, must have a legal meaning, and the meaning must evidently be controlled by the definition of perjury in section 96 of the Penal Code, that is, it must be of an oath lawfully administered, i. e., an oath administered under some provision of law. The word “ permitted,” as used in the act, refers to cases where evidence is offered to a court or judicial officer who has power to pass upon its admissibility, and admits it, perhaps erroneously, but still permits it. 5.
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There was no provision of law for the act in question, in section 96 of the Penal Code. It was not made in an action, or a special proceeding, or upon any hearing or inquiry, within the meaning of the section, as the terms relate to judicial proceedings evidently. It was not necessary for the prosecution of a private right; for even if the expression he deemed extensive enough to cover the mere presenting of a bill, the affidavit in question, so far from being necessary, was an absolute nullity for the purpose intended. It was not one required by law. Of course, if the sheriff desired his bill to be audited, it was necessary for him to comply with all provisions of law. Ueitlier he nor any one else was required to make an affidavit. Ortner v. People, 4 Hun, 323 .
III. The indictment is entirely too indefinite, uncertain and general to require the defendant to plead thereto. The indictment charges that the list sworn to did include persons committed by the courts and authorities of the United States, and that the persons included in the list had not taken the oath required bylaw. 1. It is claimed that the indictment ought to have specified which persons charged for had been committed by the courts and authorities of the United States, and which ones had not taken the oath required by law. 2. As the indictment -reads, not one of the persons included in the list had taken the oath. Those who had not taken the oath should have been specified, or the district attorney held bound to prove that not one had done so. 3. As the indictment does not allege that all the persons in the list had been committed by the courts, &c., of the United States, those who had been so committed should have been specified.
The case of Rex v. Hepper (1 Car. & P. 608),. is in point. An insolvent debtor had sworn that his schedule contained a full, &c. account of all debts owing to him, &c. The assignment of perjury was that the schedule did not contain a full, &c., account. Abbott, Ch. J., said, “The assignment of perjury in this indictment is too general ... as the assignment of perjury does not state what debt the defendant is charged with omitting, how can he possibly be prepared to make a defense ?” Citing J’Anson v. Stuart, 1 T. R. 748.

The indictment charged that a contract had been entered into between the Board of Aldermen of the city and county of .New York, acting as the Board of Supervisors of the county, and Alexander Y. Davidson, the sheriff, for the support and maintenance of persons confined in the common jail of the county upon any writ, or process, in civil proceedings, who should make oath of his inability to support himself during his imprisonment, and for the payment to the sheriff of the sum of seventy-five cents per day for each of such persons, during the time he shall be actually confined ,in such prison. That under this contract a list, or account, was made out against the county, stating the names, number of persons, and the time for which such support and maintenance had been provided, and that the defendant,.as warden or keeper of the jail, made oath to the account or statement, to the effect that the same was true, and that the maintenance and support of the persons named in it had been provided for them while they had been confined in such jail, and that they had made oath of their inability to support themselves. The indictment then charged that the account, or list, was not a true list of persons for whom support had been so provided, that they had not taken the oath required by law that they were unable to support themselves during their imprisonment, which the defendant well knew to be the fact. And that, by verifying as he did, the correctness of the list, or statement, he had committed the crime of perjury. The defendant demurred to the indictment for the reason, that it appeared upon its face that the facts stated did not constitute a crime.

The authority to contract for the support and maintenance of such persons as should make oath of their inability to support themselves during the terms of their imprisonment, was provided by section 2 of chapter 251 of the Laws of 1875. As the act was then passed, it authorized persons confined in the prisons, or common jails, of the counties of the State, after January 1, 1875, upon any writ, or process, in any civil action or proceeding in the nature of a civil action, to make oath before the sheriff, jailer, or deputy-jailer, of his inability to support himself during his imprisonment. And upon the oath being made then, by the contract authorized to be entered into

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by section 2 of the act with the sheriff, or the jailer, the persons so taking such oath were to be maintained at the expense of the public. But to recover such expense from the county it was provided by this section, that “ such sheriff or jailer shall attach to all bills rendered for such support and maintenance, a list, under oath, of the number and names of persons to whom such support and maintenance was furnished, and the length of time each person was so supported.” And this act by its fourth section, was rendered applicable to and made to include, the Board of Supervisors, as then organized, in the city of New York. That organization was specially provided for by chapter 304 of the Laws of 1874, empowering the Board of Aldermen to exercise the authority and discharge the duties of supervisors in and for the county of New York.

But by section 49 of chapter 417 of the Laws of 1877, the first and fourth sections of chapter 251 of the Laws of 1875 were repealed. But this repeal was not meant to abolish the legislative authority provided by those sections, but rather to supersede them, because of a general enactment of the same nature made by section 112 of the Code of Civil Procedure, which-took effect at the time these sections of the act of 1875 were repealed. By this section, in any county except Kings, where a prisoner, actually confined in jail, makes oath before the sheriff, jailer, or deputy jailer, that he is unable to support himself during his imprisonment, his support is made a county charge. This enactment was as broad as that of the sections of the act of 1875, which were repealed by the act of 1877. For it was made applicable' to all of the counties of the state except Kings county, and accordingly included the county of New York, and continued section 2 of the act of 1875, applicable as it previously had been to that county. For this purpose it was not important that the first and fourth sections of the act should be continued in force as long as their provisions were in general terms embodied in and continued by section 112 of the Code of Civil Procedure. That section, added to section 2 of the act of 1875, created a complete system, and left the latter act the same in its substance and effect as it would have been if this section had not been inserted in the Code, and sections 1 and 4 of the act of 1875, had been unrepealed and con-

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tinned in force. By this section of the Code and the second section of the act of 1875, the authority was still preserved for making and entering into the contract alleged to have been made by the Board of Aldermen with the sheriff. For their authority to act as supervisors in making the contract remained unaffected and continued in force as it had been conferred by the act of 1874. Under these several acts, considered and combined together, the Board of Aldermen, as supervisors of the county, were authorized to make the agreement mentioned in the indictment, and under and by virtue of it, proper charges for supporting and maintaining the persons described could be made against the county. But to sustain them and entitle the sheriff, or the jailer, to payment under the contract, the oath provided for by law was required to be made. And it was in taking that oath that the perjury alleged in the indictment is averred to have been committed.

By the second section of the act of 1875, the oath is in terms required to be made by the sheriff or jailer taking the contract, and as the contract in this instance was alleged to have been made with the sheriff, and not with the jailer, it has been supposed that the latter did not commit the crime of perjury in falsely, willfully and knowingly verifying, by his oath, this false account. But the oath did, nevertheless, tend to verify the statement made, and to entitle the sheriff to payment under the terms" of his contract. While the act of 1875 may require the oath to be made by the sheriff or jailer taking the contract, it still does not exclude the oath of the jailer when the contract may have been awarded to the sheriff. What was required by its spirit as well as its intention, was that the account or statement should be verified and sustained by the oath which was to be taken, and if that could not be done by the sheriff where the jail was not under his management or supervision, as it may not have been in this instance, the person to furnish the evidence would be the jailer, having himself alone the knowledge acquired by his position to enable him to supply the proof. There certainly was no exclusion in any form of his oath as a verification of the list or statement. It was proof that had to be supplied before the account would be payable, and the defendant undertook to supply that proof. And if he

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did that willfully, knowingly and falsely, as the demurrer to the indictment admits he did, then he would seem to have committed the crime of perjury, as that has been defined in section 96 of the Penal Code of the state. For by that section perjury has been declared to consist in declaring, deposing to, or certifying, falsely in any material matter, in any declaration, deposition, affidavit or certificate necessary for the prosecution or defense of a private right, where an oath may be lawfully administered. An oath could be lawfully administered to verify and sustain this account or statement. When so administered it was a deposition, declaration, affidavit or certificate, within the language of this section, and if the defendant knew when he made the oath that it was false, as it was material for the support of the account, the crime alleged in the indictment was committed by him; It has been further provided by section 98 of the Penal Code that, “ It is no defense to a prosecution for perjury that the defendant was not competent to give the testimony, deposition, or certificate, of which falsehood is alleged. It is sufficient that he actually was permitted to give such testimony, or make such deposition or certificate.” This section was enacted to preserve and maintain the preceding general rule, “ that though a person is not a legal and competent witness in a case, if he is actually admitted by the court and testifies, he commits perjury when what he testifies to is willfully false.” 2 Bishop Crim. Law, 5th ed. § 1019; Pratt v. Price, 11 Wend. 127 . And it has, by the Penal Code, been made to include not only evidence given in the course of legal proceedings but oaths taken under the authority by which this oath was provided for. As the law has been enacted, where an oath may be taken, the party, or person, who takes it, cannot protect himself against criminal accountability, by alleging his incompetency to give the deposition, or certificate, of which the falsehood is alleged. But it is sufficient to render his act criminal, that he has taken the oath for the purposes provided by law. That, according to the indictment, was done by the defendant. lie undertook to verify the account, or statement, when an oath had by statute been provided for that purpose, and he is alleged to have taken the oath knowingly, willfully, corruptly and falsely.

Dissent

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It has been claimed that the indictment was too general in its allegations as to the fact that the oath was false, but this objection is unfounded, for it has been averred that the persons charged for, and confined in the jail had not taken the oath required by law, that they were unable to support themselves during their imprisonment, and that the defendant well knew that to be the fact. This averment included all the persons whose names were contained in the account, or list, which was set out as it had been drawn in the indictment. There was not the least diificulty in understanding the particulars under this, as well as other averments, not required to be noticed, of the alleged falsehoods intended to be relied upon in support of the indictment. And when that is the form of the pleading it has been declared to be sufficient by section 284 of the Code of Criminal Procedure.

The judgment from which the appeal has been taken should be reversed, and the defendant required to plead to or answer the indictment.

Davis, P. J., concurred.

The defendant was indicted for perjury. The oath which was alleged to have been falsely taken was one required by chapter 251 of the Laws of 1875. It is insisted by the respondent that the act mentioned docs not apply to the city of New York. Without passing upon this question, which is not necessary to the determination of the appeal under consideration, and assuming the act applies, therefore, to this city, the oath taken was one which was extra-judicial and not the subject of indictment. I think the opinion of Justice Baeeett sustaining the demurrer is a sufficient revelation of the law by which this case is to be governed, and requires no elaboration.[1]

The judgment appealed from should be affirmed.

* See ante, p. 150.

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