[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 374 This appeal presents a question which is both interesting and important. Can a person be convicted of attempted subornation of perjury, upon evidence which would not support a conviction upon the charge of perjury, if the attempt had been successful? As applied to the concrete facts of record the question is whether the defendant was properly convicted of an attempt at subornation of perjury even though the person sought to be suborned could not have been convicted of perjury, if the false testimony attempted to have been procured had been actually given under oath. As appears from the foregoing statement of facts, the defendant was charged with having attempted to procure false testimony from one MacCauslan, in an action for a divorce brought by one Helen K. Gould against Frank J. Gould. At the time when this attempt was made the complaint had been served, and the only issuable charge it contained was that the said Frank J. Gould had been guilty of an act of adultery committed with a woman unknown to the plaintiff, in a house of prostitution in the town of North Sydney, Cape Breton, Dominion of Canada, on the 25th day of July, 1905. That was the precise and definite issue tendered by the complaint. What was the false testimony which the defendant herein is charged with attempting to procure? That in the month of March, 1908, Mabel MacCauslan saw Frank J. Gould, the defendant charged with *Page 376 the above-mentioned specific act of adultery, come out of a bedroom in the apartment of one Bessie Van Doren (alias De Voe) in the city of New York, under circumstances which might tend to support a charge of adultery between the man Gould and the woman Van Doren at that time and place. Thus we see that the traversable issue of record was whether Gould had committed adultery in a Canadian brothel in 1905, and that the false testimony solicited from MacCauslan was designed to show a separate and distinct act of adultery not referred to in the complaint, committed by Gould in the city of New York in the year 1908. The bare statement of these facts, unrelated both in pleading and in circumstance, is sufficient to draw attention sharply to the utter irrelevancy, incompetency andimmateriality of the false testimony solicited, to the issue tendered by the complaint in Gould v. Gould. (Stevens v.Stevens, 54 Hun, 490; Germond v. Germond, 6 Johns. Ch. 347;Reg. v. Southwood, 1 Fost. Fin. 356.)
From time immemorial the common law has made the materiality of false testimony an essential ingredient of the crime of perjury. From their earliest beginnings our statutes have always embodied that rule. Our penal laws, but recently recodified, have continued it. That, in short, is the unquestioned law of this state. (Penal Code, sec. 96; Penal Law, sec. 1620.) The language of the statute is that a person who willfully and knowingly testifies falsely, in any material matter, is guilty of perjury.
What, then, is subornation of perjury? The answer is that a person who willfully procures or induces another to commit perjury is guilty of subornation of perjury. (Penal Code, sec. 105; Penal Law, sec. 1632.) This plain language of the statute needs no elucidation. Subornation of perjury can only be predicated upon perjury committed. If the person alleged to have been suborned has not committed perjury, the alleged suborner cannot be held guilty of subornation of perjury. (Wharton Cr. Law, vol. 2 [10th ed.], sec. 1330; Com. v. Smith, 11 Allen, 243.) *Page 377
What is attempted subornation of perjury? Turning again to the statutes we read that "an act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime." (Penal Code, sec. 34; Penal Law, sec. 2.) "That" crime, in the case at bar, is subornation of perjury, and could only have been committed if the false testimony, if given, had constituted perjury. It seems to follow, therefore, that if there could have been no subornation of perjury, there was in fact no attempted subornation of perjury within the meaning of the statute. If the person actually giving false testimony is not guilty of perjury, the person through whose procuration the testimony is given cannot be guilty of subornation of perjury and, by the same rule, an unsuccessful attempt to do that which is not a crime when effectuated, cannot be held to be an attempt to commit the crime specified.
If this reasoning is sound, it is clear that the question before us resolves itself into the inquiry whether the actual giving of the false testimony set forth in the indictment would have constituted the crime of perjury. We have already said that the false testimony which the defendant attempted to procure was irrelevant, incompetent and immaterial to the only issue presented by the complaint in Gould v. Gould. We may pass without discussion the elements of irrelevancy and incompetency. These could have been waived. They are, moreover, not essential to the commission of perjury as defined in the statute. It is different, however, as to materiality. If false testimony is not material it cannot support an indictment for perjury. The testimony upon which such a charge is predicated must be false "in any material matter." The testimony solicited of MacCauslan was not false in any matter material to the issue in Gould v.Gould, and we do not see how the conviction in the case at bar can be sustained unless we adopt the suggestion that if the false testimony, although not material when solicited, might have become so by a subsequent amendment of the complaint, then the facts proved upon the trial support the charge laid in the indictment and *Page 378 sustain the judgment of conviction. We cannot entertain this view. If the charge of perjury could not have been sustained in case the false testimony had actually been given under the complaint as it then stood, no subsequent change in the pleading or issue could relate back to the time when the act was committed. It would be highly dangerous to make the charge of perjury dependent upon issues or events arising after testimony has been given. If that were the rule it would be unsafe to testify with the utmost truthfulness upon any issue which might, by any possibility, be changed by subsequent events. No such shifting rule ought ever to be engrafted upon a system of jurisprudence in which the protection of individual rights is a cardinal principle.
It is suggested that this is a narrow and technical view of the question which will permit to go unpunished many who are as morally culpable as though the false testimony given or solicited by them were actually material to an issue in existence when the false testimony is given or solicited. There are several answers to this intimation. We read the statute as we find it. If it is ever deemed wise to take out of the statute defining perjury the element of materiality in the false testimony given, suborned or solicited that should be done by legislative enactment and not by judicial construction. We admit that the rule of strict construction applicable to penal statutes is modified by the legislative declaration that the Penal Code (now Penal Law) shall be "construed according to the fair import of their terms to promote justice and effect the objects of the law," but we do not think that this means that an essential part of a statute may be ignored for the purpose of promoting justice in a particular case.
Beyond all this, however, the legislature seems to have provided for just such cases as the one at bar, in which it may be impossible to prove the commission of the crimes of perjury and subornation of perjury as defined in the statutes, but which yet disclose acts that should be punishable because they are prejudicial to the orderly and righteous administration of justice. The former Revised Statutes under the general title *Page 379 relating to perjury and subornation of perjury provided: "Every person who shall, by the offer of any valuable consideration, attempt unlawfully and corruptly to procure any other to commit willful and corrupt perjury, as a witness, in any cause, * * * shall, upon conviction, be punished by imprisonment in a state prison not exceeding five years." (2 R.S. p. 682, sec. 8.) When the Penal Code was enacted this section, much broadened in scope and effect, was taken out of the chapter relating to perjury and subornation of perjury and placed under the new title "Falsifying Evidence." Under the latter title the section as redrawn reads: "A person who gives or offers or promises to give, to any witness or person about to be called as witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other meansfraudulently to induce any witness to give false testimony or to withhold true testimony, is guilty of a felony." (Penal Code, sec. 113; Penal Law, sec. 2440.) It will be observed that the provision relating to the giving, offer or promise of a bribe to influence a witness, is supplemented by the declaration that any attempt "by any other means fraudulently to induce any witnessto give false testimony or to withhold true testimony," shallconstitute a felony.
If this amplification of the statute has any significance whatever, it must mean that any fraudulent attempt by a person to induce another to testify falsely is punishable as felonious, even though it does not fall within the purview of the statutes relating to perjury in which the test of the materiality of the false testimony is still retained. That this seems to have been the legislative purpose behind this enlarged or supplemental statute is further evidenced by the fact that the section was placed, not under the general title "Perjury and Subornation of Perjury," but under a special classification entitled "Falsifying Evidence." If this is the fair import of the phrase and collocation of the amended statute, it will readily be perceived that the danger which is said to lurk in too literal a construction of the statutes relating to *Page 380 perjuries is much more apparent than real. All that seems to be necessary to the prosecution of persons guilty under either of these branches of our criminal law, is to frame indictments under the proper statutes and make proofs accordingly.
Thus far we have proceeded upon the assumption that the statutes are clear and unequivocal. We are referred to certain decisions, however, which are said to indicate, if they do not explicitly hold, that the test of materiality is to be applied to the subject of an action and relates to the issue at any stage of a case, rather than to an issue as framed when the testimony is given. Lest silence as to these cases should be misconstrued into acquiescence as to their effect, we shall briefly review them. It is said that the question has been settled ever since Lord COKE'S definition of perjury as "a crime committed when a lawful oath is ministered by any one that hath authority, to any person, in any judicial proceeding, who sweareth absolutely and falsely in a matter material to the issue, or cause in question, by their own act, or by the subornation of others." (3rd Inst. 165.) We see nothing in this definition that conflicts with our own views as to the effect of statutes relating to perjury. When "issue" and "cause" are synonymous, as in the case at bar, it matters not which expression is employed; and it may well be that in other cases where these terms are not convertible, there may be materiality of testimony as to the general cause, although it may not exist as to one or more of the issues involved. It is but a play upon words to say that in an action for a divorce based upon a single specific act of adultery there can be any distinction between "cause" and "issue." It is true that the cause of action is adultery, but it is the adultery alleged, and that is the issue. Proof of any other act of adultery than that which is specifically alleged is no more material than proof of a larceny or any other kind of tort. The case of Reg. v. Phillpotts (2 Den. Cr. Cas. 302) is also cited; but what was that case? The defendant therein had testified that a certain paper was a true copy of a will, *Page 381 and that he had examined one of the record books to ascertain whether it was a correct transcript. The court was ready to receive the paper, but it was withdrawn. The defendant had not examined the record and had testified falsely in that regard. The paper was not competent, although the defendant's testimony respecting it was material to the litigation. Upon the subsequent prosecution for perjury the court held that the defendant could be convicted, and that "the question whether perjury had been committed must depend upon the state of things when the witness left the box" and not upon what happened thereafter. In Reg. v.Gibbons (9 Cox Cr. L. Cas. 105) a similar situation arose. The person accused of perjury had sworn in another litigation to the credit of a witness. The testimony, although not relevant, was held material, and upon that ground was held to support a charge of perjury. Our own state affords an excellent example of the rule laid down in the two English cases just referred to. InChamberlain v. People (23 N.Y. 85) the plaintiff in error was convicted of perjury. The charge was predicated upon false testimony given by him in an action for a divorce against his wife upon the ground of her alleged adultery. She had borne a child, and he testified that he never had sexual intercourse with her. The fact testified to by the husband was most material to the issue, but the husband was not a competent witness to the fact. This court decided that the criminal prosecution depended upon the materiality of the evidence in the action for divorce, and not upon the competency of the witness. The rule enunciated in that case is now embodied in our penal laws in the following language: "It is no defense to a prosecution for perjury that the defendant was not competent to give the testimony." (Penal Code, sec. 98; Penal Law, sec. 1623.) When the distinction between competency and materiality, thus clearly made both in decisions and statutes, is given its proper effect, there can remain no doubt that when testimony is material, although concededly incompetent, perjury may be assigned upon it; and the converse of the proposition must logically follow. A *Page 382 witness may be competent, and his testimony may be relevant, but if it is not material to the issue, it cannot be the basis for a charge of perjury. Our attention is called to the cases ofPeople v. Moran (123 N.Y. 254) and People v. Gardner (144 N.Y. 119). It is said that they are authorities for the doctrine that the question whether a person has made an attempt to commit a crime depends upon the mind and intent of the actor and not upon the result of the act. That is quite true as regards the crimes of larceny and extortion, which were the subjects of discussion in those cases, and it may be true in many other instances where the law looks only to the intent without reference to result. But a different rule has been established as to the crime of perjury. The statutes declare that materiality of the false testimony is of the essence of the crime. Without it the crime cannot be committed no matter what the intent may be. The same rule applies to subornation, and where there is neither perjury nor subornation thereof, there can be no such attempt to commit either of these crimes as to fall within the statutes relating to attempts at commission of crimes.
It may be said in closing that although the unanimous affirmance at the Appellate Division of the judgment of conviction herein precludes an examination in this court of the facts of record, the question which we have discussed is effectually raised by appropriate exceptions to rulings in the trial court upon the admission of evidence.
The judgment of conviction herein should be reversed and a new trial ordered.