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App. Div.]


mission of a crime, he must examine on oath the informant and prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the party making them. (Code Crim. Proc. § 148.) As there is no allegation or proof to the contrary, it must be assumed that this information was taken by the police magistrate in the ordinary manner in which such things are done. The statute requires, further, that the depositions should set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant (Code Crim. Proc. § 149), and if the magistrate is satisfied from them that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest. (Code Crim. Proc. § 150.) It will be seen, therefore, that the evidence required by the depositions to authorize the issuing of a warrant is such only as to satisfy the magistrate that a crime has been committed, and that the defendant was guilty of it. It is necessary that the facts stated in the depositions should be such as to warrant the two conclusions above stated, but it is not necessary that those facts should be stated with the particularity required in an indictment, or that the evidence should be conclusive, or even such as to satisfy the magistrate beyond a reasonable doubt. The object of the deposition is to set the law in motion to investigate the question whether the defendant accused is guilty of a crime, and evidence adduced before the magistrate to warrant the issuing of the process need only be something upon which his mind is called to act in determining the question of probable cause. (Pratt v. Bogardus, 49 Barb. 89, 94.)

It is necessary, therefore, to examine this deposition sufficiently to enable us to see whether there was evidence from which a reasonable man would infer that the crime of perjury had been committed. The statute prescribes that one who swears that he will truly testify upon any hearing or inquiry, or on any occasion on which an oath is required by law, and who, upon such hearing or inquiry or such occasion, willfully and knowingly testifies or states in his testimony any material matter to be true which he knows to be false, is guilty of perjury. (Penal Code, § 96.) This definition of the crime of perjury is not materially different from


[Vol. 38. that contained in the Revised Statutes. It is apparent that to make one guilty of it he must have taken an oath in a proceeding before one authorized to administer an oath; he must have given testimony which was material in that proceeding; he must have stated that matter to be true which he knew to be false, and that falsehood must be willful and to his knowledge. The deposition states in terms that the plaintiff here did commit perjury by swearing falsely in a matter material to the issue upon a hearing before a justice of the Eighth District Civil Court. The deposition does not state in terms that the false testimony was willfully and knowingly given, but it is not necessary in the deposition that such statements should be made. in so many words if facts are stated from which the magistrate might reasonably be satisfied that those essential elements of the crime of perjury existed; and if he is so satisfied, it is his duty to issue the warrant, although the facts are not stated with that particularity or accuracy which would be required in an indictment.

The false statement alleged is that at the trial before a justice of the Eighth District Civil Court on the 12th of November, 1894, the plaintiff having been asked, "Didn't you swear in Jefferson Market Police Court that you had complained to Mr. Smith about sights you had seen there?" answered, "No, sir." The deposition states that on the 13th of October, 1894, in the Jefferson Market Police Court, at a hearing before a police justice named, the defendant was a witness, and was asked the following question: "Have you ever complained to Mr. Smith of the character of that house?" to which the defendant replied, "Yes, sir;" and the defendant was then asked, "What did you see there?" to which the defendant replied, "I told him I had seen a woman partly nude at the windows on that floor that was on the other side of us." The deposition further states that the deponent (the defendant) "was present at both examinations, and knows of his own knowledge that the defendant made the above-mentioned contradictory answers." That the testimony was contradictory is plainly to be inferred. Necessarily, then, the second statement could not be true, because it appears affirmatively by the affidavit of the defendant that the first statement was made, and it also appears that the second statement was made. There can be no doubt, then, upon this deposition, that the second statement, made on the 12th of November, 1894, was false testimony


App. Div.]


was it willfully and knowingly given? It must be inferred, and the magistrate was bound to infer, that the plaintiff knew what testimony he gave on the 13th of October, 1894. There is no presumption that he forgot it, and certainly, unless he had forgotten it, he must have known on the twelfth of November what testimony he had given on the thirteenth of October, and that, if the testimony had been given on the first occasion, that given on the second occasion was not true. The police justice to whom this paper was presented had a right to infer that the testimony was knowingly given. If it were not, if the plaintiff had forgotten in November what testimony he gave in October, that was a matter of excuse, but it was not necessary that the excuse should be negatived in the deposition.

Was there sufficient in the affidavit to warrant an inference on the part of the police justice that this evidence was willfully given? We think there was. In the first place, the statement was that he committed perjury. While that was a conclusion of law to some extent, yet it must be considered as an inference which the police justice was warranted in drawing from the facts stated. The word "willfully" has various meanings in the Penal Code. In some cases it is used to mean an act done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness. (Wass v. Stephens, 128 N. Y. 123, 128.) In other cases, and where the indictment is used in the Statute of Perjury, it is construed to mean with design, with some degree of deliberation. (29 Am. & Eng. Ency. of Law, 117.) We think that, upon the facts stated here, there was sufficient to warrant the justice in concluding that there was enough deliberation in the giving of this testimony to constitute willfulness. The attention of the plaintiff was called by the question to his former testimony. He was asked directly whether or not he had given it at such a time and such a place, and he deliberately answered that he had not. Certainly, that testimony thus given would be sufficient to warrant a jury in finding that the witness had deliberately sworn falsely on the twelfth of November. Such conclusions are permitted to be drawn every day in trials, and we see no reason why a justice to whom these facts are submitted, unexplained and uncontradicted, may not draw from these facts the same inferences which a jury upon a trial would be permitted to make.


[Vol. 38.

The case is not one where it appears only that contradictory testimony has been given, leaving it in doubt which of the two contradictory statements is true; but it appears affirmatively, not only that two contradictory statements were given, but that, at the time the second one was testified to, the first one might have been presumed to be within the knowledge of the person accused; and that his attention was called to it so that he had an opportunity to consider in regard to it and deliberately testified in a different way. We think, therefore, that the statements in the deposition were sufficient to require the justice to determine whether or not the crime of perjury had been committed by the defendant. In that case, although his conclusion may have been erroneous, he acted within his jurisdiction and his issuing of the warrant is a protection to any person who acted under it. (Hallock v. Dominy, 69 N. Y. 238.) There can be no question that a warrant issued upon this process was sufficient in form to protect any one who acted upon it. It was in the form prescribed by the Code of Criminal Procedure and contained a statement of the crime as required by sections 151 and 152 of the Code of Criminal Procedure. The particulars of the crime were not required to be stated, and although a portion of these particulars were stated, yet the fact that the warrant contained more than was necessary is not sufficient to invalidate it. The process, therefore, upon which this plaintiff was arrested was sufficient. The justice had jurisdiction to issue it, and for that reason the defendant was not liable for a false imprisonment, even had he taken such a part in the arrest as would constitute him a trespasser had the warrant been void.

The plaintiff, however, relies upon the case of Hewitt v. Newburger (141 N. Y. 538), as holding that because to constitute the crime of perjury the giving of false testimony should be willful, it was necessary to allege in so many words that it was willfully committed, and because it was not so alleged the proceedings were void. In that case the plaintiff was arrested upon a charge of the crime of injuring property belonging to the City Mills, a corporation in the city of Amsterdam, in that he threatened to tear down a wall "now being erected by said corporation and being the property thereof, and the same is being built for the purposes of a dam and there is just reason to fear that the said Daniel C. Hewitt (the plain

App. Div.]


tiff) will tear down and demolish said wall, as he, the said Daniel C. Hewitt, hath, as above, threatened to do."

The crime alleged to have been charged is that of willfully or maliciously destroying a pier, boom or dam, lawfully erected or maintained upon any water in the State (Penal Code, § 639), or of unlawfully or willfully destroying or injuring real or personal property of another. (§ 654.) The court held that the information. quoted above did not constitute a crime for the reason that it did not appear that the property destroyed was not the property of Hewitt. Nor did it appear that there was any willful or malicious intent in destroying it, or that the dam or wall was lawfully erected or maintained. This conclusion is necessarily correct. The destruction of the wall as alleged could not constitute a crime unless it was done under the circumstances forbidden by the Penal Code, and, therefore, it was absolutely necessary that there should appear in the information something from which it might be inferred that it was done under those circumstances. As nothing of that sort appeared, there was no crime charged, and, therefore, the process was void.

The distinction between that case and this is a very plain one. In this case there is evidence, as we have shown, from which the justice had a right to infer that the false swearing was done under such circumstances as to make it perjury. Therefore, the case is

not authority in favor of the plaintiff here.

The conclusion of the learned court below was, therefore, correct, and the judgment entered upon his dismissal of the complaint should be affirmed, with costs.

VAN BRUNT, P. J., and INGRAHAM, J., concurred; BARRETT and PATTERSON, JJ., dissented.

BARRETT, J. (dissenting):

The plaintiff was arrested upon a warrant issued by a police magistrate at the instance of the defendant. He claims that the warrant was void because the affidavit upon which it was founded contained no allegation or proof of the commission of a crime. These positions are fully sustained by the case of Ilewitt v. Newburger (141 N. Y. 538). The charge there was that the person arrested had threatened to tear down and destroy a wall in process

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