People v. Ostrander — 19 N.Y.S. 324

Majority

p. 324

People v. Ostrander.

(Supreme Court, General Term, Third Department.

June 1, 1892.)

Headnote

1. Perjury—False Report by Officer of Savings Bank.

Laws 1883, c. 409, § 370, requires savings banks to make semiannual reports off their condition to the state banking department. Sections 271 and 273 declare that the report shall state the assets and liabilities of the bank, including the amount due depositors. Section 273 provides that the “report shall be verified by the oath of the two principal officers of the institution, and the statement of assets shall be-verified by a majority of the trustees who examined the same, pursuant to the-requirements of section 279 of this act. ” Section 279 provides that the trustees of every savings bank shall examine the books, vouchers, and assets of the bank, and its affairs generally; and that “the statement or schedule of assets and liabilities-reported to” the banking department semiannually “shall be based upon such examination, and shall be verified by the oath of a majority of the trustees making such examination. ” Meld, that the two principal officers of a bank are required to-certify under oath that the report is a correct report of the condition of the bank, based on their own knowledge; and, where the treasurer of a bank knowingly makes a false affidavit that the report correctly states the amount due depositors, it is error to sustain a demurrer to an indictment against him for perjury on the-ground that he was only required to swear that the report was a correct statement.

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of, or correct as based upon, the examination made by the trustees, and that any other oath was extrajudicial, and a charge of perjury could not be predicated upon, it.

8. Same—Indictment.

Where the indictment in such case charges that the report stated the amount due depositors to be a certain sum, and that it was sworn to by defendant as correct, that the statement was in fact false, and defendant, knowing that it was false, and that the amount due depositors was larger than that stated in said report, verified the same, etc., it is not bad on the ground that it fails to aver that defendant swore that the affidavit subscribed by him was true, the affidavit only stating that the statements contained in the report were correct, but sufficiently charges perjury, under Pen. Code, § 96, declaring a person guilty of perjury if he “ swears * * * or states in his * * * affidavit or certificate any material matter to be true which he knows to be false. ”

8. Same—False Affidavit.

To constitute perjury, under Pen. Code, § 96, declaring a person guilty if he “swears * * * or states in his * * * affidavit or certificate any material matter to be true which he knows to be false, ” it is not necessary that a false affidavit of verification shall itself state the facts sworn to, but they may be stated in the report or pleading to which the affidavit is attached.

4. Same—Indictment.

An indictment against an officer of a bank for perjury, in falsely making affidavit that the statement of the bank’s liabilities contained in his report was correct, is sufficient if it avers that the liabilities were a larger amount than the amount mentioned in the report, without stating the amount of the excess.

Appeal from court of oyer and terminer, Ulster county.

Indictment against James E. Ostrander for perjury. From a judgment sustaining a demurrer to the indictment the people appeal.

Reversed.

Argued before Putnam and Herrick, JJ.

J. N. Vanderlyn and A. Schoonmaker, for the People. William Lounshery and D. M. JDe Wilt, for respondent.

The defendant was indicted for perjury claimed to have been committed in making a false verification to the semiannual report of the Ulster County Savings Institution, rendered to the superintendent of the banking department of the state of Hew York on July 29,1890. A demurrer interposed by defendant, on the grounds that the indictment does not conform to the requirements of sections 275, 276, Code Crim. Proc., and also that the facts stated do not constitute a crime, was sustained at the oyer and terminer, and judgment ordered for the defendant, from which this appeal is taken. By section 270, c. 409, Laws 1882, savings banks, such as the Ulster ■County Savings Institution, are required, on or before the 1st days of February and August in each year, to make a report in writing to the superintendent of the banking department of its condition on the mornings of the 1st •days of January and July preceding: Sections 271 and 272 prescribe the contents of such report; that it shall contain, among other things, a statement of assets, and how invested, and also a statement of the liabilities of the corporation, amount due depositors, and other facts. Section 273 provides for the verification of said report, as follows: “Such report shall be verified by the oath of the two principal officers of the institution, and the statement of assets shall be verified by the oath of a majority of the trustees who examined the same, pursuant to the requirements of section 279 of this act.” The defendant was the treasurer of said corporation, and made the affidavit required by section 273, on July 29, 1890, to the report then made by said bank, in pursuance of the provisions of sections 270, 271, 273. This affidavit is the one mentioned in said indictment. It is clear that the defendant at the time was one of the principal officers of the bank, within the meaning of the. statute, and a proper party to make said affidavit. The act of 1882, § 279, also provides that the trustees of every savings institution shall, on or before the 1st days of January and July in each year, thoroughly examine the books, vouchers, and assets of such savings institution, and its affairs generally; and that the statement or schedule of assets and liabilities, re

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ported to the superintendent of the banking department for the 1st days of January and July in each year, shall be based upon such examination, and shall be verified by the oath of.a majority of the trustees making it. At theoyer and terminer it was held by the court that, under the provisions of sections 273 and 279, the principal officers of the bank were not called upon or authorized, in the making of the report to the superintendent of the banking-department, to verify such report as to the assets or liabilities of the bank;, that the report of said officers, as made to the superintendent of the banking-department, was based upon the report made by the committee of the trustees, and hence that perjury cannot be predicated upon an affidavit made by-defendant as to the assets and liabilities of the bank, which he was not bound under the statute to make; that the oath of the defendant set out in the indictment was extrajudicial, the act only requiring the defendant to make oath that the statement of liabilities and amount due depositors was correct, according to the finding of the committee of the trustees.

It is to be regretted if this is a correct construction of the act of 1882. If" so, officers of a savings bank, like defendant, who in fact control its affairs, and have the charge and management of its books and vouchers, obtaining-a report from a committee of its trustees on such books, vouchers, and papers as such officers choose to submit to such committee, can swear to such a report, although knowing it to be a false one, without being guilty of perjury. I am unable to agree with such an interpretation of the statute. I think that the very language of section 273 requires the principal officers of" the bank to verify the entire report. Sections 270-272, supra, provide for the making of the report, and what it shall contain; and then section 273 enacts that the said report shall be verified by the two principal officers of the bank. The statute does not say that a part of the report shall be verified, but provides that “such report shall be verified.” This, I understand, means all the-report.

There is nothing in the provisions of section 279 inconsistent with those of" section 273. The latter section, as I construe it, requires the oath of the officers to the whole report, and sections 273 and 279 together require the-affidavit of a majority of the committee of the trustees to the statement of the assets and liabilities. It is true that the report made and sworn to by the-officers of the bank and its trustees is based upon the examination made in pursuance of section 279. Although based upon such examination, the statute prescribes that it shall be sworn to by the officers,—the whole of it. The language of section 273 is significant. While providing that the report-generally shall be verified by the oath of two of the principal officers, it specifies what part of the report shall be verified by the oath of the trustees,—the-statement of assets and liabilities. So, had it been the intention of the lawmakers that the principal officers should only verify a portion of the report, the statute would doubtless have stated what part said officers should make oath to.

Although the report so made, under section 279, supra, is based on the examination of the trustees, if the defendant, as alleged in the indictment, knowing said report to be false, willfully and corruptly made a false affidavit verifying it, I think this is perjury, under the Penal Code. Should a case arise where the examination of the trustees of the bank did not show the correct amount of assets or liabilities and the true sum due depositors, to the knowledge of the officers, the latter would not be compelled to verify the report known by them to be false. In such a case a special affidavit could be drawn to meet the difficulty. On the trial of the case, if it should appear that the defendant relied upon the examination of the trustees, and verified the semiannual report in good faith upon their statement, although the report proves to be false in fact, he would be entitled to. an acquittal. But if it should be shown that the report submitted by the bank to the superintend

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ent of the banking department, as alleged in the indictment, was false in fact, and the defendant, while knowing it to be so false, made an affidavit of its correctness, he could be properly convicted of perjury under the statute. The evident intent of the statute is to provide for the verification of the report by the principal officers of the bank, who knew best as to its condition, and also for a semiannual examination of the affairs of the institution by its trustees, evidenced to the superintendent of the banking department by the affidavit of the committee of such trustees attached to the semiannual report. I conclude that the oath of the defendant to the semiannual report of the Ulster County Savings Institution, as alleged in the indictment, was not extrajudicial, but was an affidavit.required by the plain terms of section 273 of the act of 1882, and that hence, if the allegations in the indictment are true, the defendant can be held for perjury.

There are other objections made by the defendant to the indictment which the justice holding the oyer and terminer did not consider, and which I do not think it necessary to discuss at length. It is claimed by the defendant that the indictment is fatally defective; that it fails to aver that the defendant swore that the affidavit subscribed by him was true, it (the affidavit) only stating that the statements contained in the report were correct. This position of defendant is a novel one, and I think not well taken. Section 96 of the Penal Code provides: “A person who swears * * * or states in his testimony, deposition, affidavit, or certificate any material matter to be true which he knows to be false is guilty of perjury.” In the indictment the report to the superintendent of the banking department is alleged to have stated the liabilities of the Ulster County Savings Institution at a certain sum, and that this was sworn to by defendant as correct. Such statement was in fact false, and defendant, knowing that the said allegation was false, and that the liabilities of said bank and the amount due depositors were much larger than that stated in said report, verified, etc. That was an allegation, as stated in the indictment, by the defendant, in his affidavit, of the truth of the facts stated in the report known by him to be false, and seems to come within the definition of “perjury,” as defined in section 96, supra. To constitute perjury under said section, it is not necessary in an affidavit of verification itself to state the facts sworn to. The facts sworn to may be stated in the report or pleading to which said affidavit is annexed or attached. Such report or pleading and affidavit of verification forming, in fact, one paper. It is immaterial whether the facts sworn to are set out in the affidavit or in the paper annexed, of which the affidavit may be deemed a part.

In my judgment, the statement in the indictment that the liabilities were a much larger sum than the amount mentioned in the report is sufficient. It is not necessary to state the amount of liabilities in excess of the amount reported. It is not a case where the amount of such excess is material. I have read the indictment with some care, and it seems to me to be carefully drawn, and to comply with the requirements of the Code of Criminal Procedure. See sections 275, 284,285, 2^1; People v. Clements, (N. Y. App.) 13 N. E. Rep. 782 ; People v. Higbie, 66 Barb. 138 ; People v. Dimick, 107 N. Y. 29 , 30, 14 N. E. Rep. 178 . The judgment allowing the demurrer should be reversed, and the demurrer disallowed, with liberty to defendant to plead to the indictment.

The same disposition should be made of the other case of People v. Ostrander, 19 N. Y. Supp. 328 , and that of People v. Trumpbour, Id. 331 .