The defendant, Margaret Teal, with two other persons, were jointly indicted for the crime of an attempt to commit the crime of subornation of perjury, on the 20th day of July, 1908, at the borough of Manhattan, city and county of New York. At that time there was pending in the Supreme Court, in that county, an action brought by Helen K. Gould, as plaintiff, against her husband, Frank J. Gould, in which she sought to procure a judgment dissolving *Page 383 the marriage contract and divorcing the parties. The indictment charges that afterwards and before the trial of the action, the defendant and those indicted with her, "unlawfully, corruptly, wickedly and maliciously did feloniously and wilfully solicit, procure and induce one Mabel MacCauslan to go and appear upon the hearing which should thereafter be had before such referee as should thereafter be appointed to take proof of the facts charged in the complaint in the said action as a witness for and on behalf of the said Helen K. Gould, the plaintiff in the said action, as aforesaid, and upon the said hearing to commit perjury and falsely to swear and give in evidence, before such referee, certain matters material and relevant to said action and to the issues therein and in support of the material facts charged in the complaint of the said Helen K. Gould in the said action in substance and to the effect following; that is to say, that she, the said Mabel MacCauslan, had at some time in the month of March, 1908, seen the said Frank J. Gould, when only partly dressed, come out of the bedroom of a woman known as Bessie Van Doren, or Bessie De Voe, in a certain apartment, in an apartment house called the Glenmore." The indictment further charges that Mabel MacCauslan had never seen Frank J. Gould come from the bedroom of the woman named, in that apartment house or elsewhere, of which the defendant well knew.
Upon the trial of the defendant, upon the indictment aforesaid, the jury rendered a verdict of guilty, and our examination of the evidence given on behalf of the People has led us to conclude that it amply sustains the verdict. It, however, appeared that at the time of the attempted suborning of Mabel MacCauslan, the complaint in the divorce action had been recently served, and the period within which plaintiff had the right to serve an amended complaint had not yet expired, and that the answer of the defendant to such complaint was not served until seven days thereafter. It further appeared that the complaint, as it then stood, alleged that the defendant on the 25th day of July, 1905, while cruising on *Page 384 the yacht Helenita, entered the harbor at North Sydney, Cape Breton, Dominion of Canada, and there committed adultery with a woman, whose name was to the plaintiff unknown, and that no other misconduct of the defendant was therein charged.
The appellant now insists that the attempted subornation of perjury of which she had been convicted was not committed, for the reason that the false testimony solicited by her, to be given by Mabel MacCauslan, was not material upon the allegation alleged in the complaint. That in order to make the false testimony material a complaint must allege misconduct on the part of the defendant at the time and place and with the person charged in the complaint. The question thus presented is not only interesting but of great public importance. For if the contention of the appellant is sound, it discloses a very serious defect in our criminal statutes. Persons desiring a dissolution of their marriage contracts may themselves, or through private detectives or other persons, manufacture evidence and procure others to falsely swear to transactions that never took place without fear of punishment, if such suborning is done before an issue joined in an action brought. A person committed under a charge of murder may through his agents suborn witnesses with impunity to falsely testify to an alibi, or other matters constituting a defense, if it is only done before indictment is found, for until then it would not be material to any pending issue in the criminal action. And this may be done with reference to every charge throughout the entire catalogue of crimes, without the power to prosecute the suborning person for any crime whatever.
The Penal Code, which was in force at the time of the transaction charged in the indictment, provides, in substance, that a person who swears or affirms, in an action, or special proceeding, or upon any hearing or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered, willfully and knowingly testifies falsely, in any material matter, is *Page 385 guilty of perjury. (Section 96.) "A person, who willfully procures or induces another to commit perjury, is guilty of subornation of perjury." (Section 105.) "An act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime." (Section 34.) It will thus be seen that in order to constitute perjury the false testimony must be material. This is the provision of the Code and it was one of the requirements of the law. Was, therefore, the false testimony which Mabel MacCauslan was solicited to give material within the requirements of the provision of the Code referred to? In construing these provisions it is provided that "The rule that a penal statute is to be strictly construed does not apply to this Code or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law." (Section 11.)
As we have seen, the action that was brought by Mrs. Gould against her husband was to obtain a divorce upon the statutory grounds. At the time of the transaction in question the complaint had been served, but the time had not expired in which she had the right to serve an amended complaint. No issue had then been joined by the service of an answer. The only misconduct charged against the defendant, as the complaint then stood, was alleged to have occurred at North Sydney. If, therefore, the materiality of the false testimony which the defendant sought to have given pertained only to issues actually framed by the pleading, then effect must be given to appellant's contention. But to my mind the materiality is not so limited. Lord COKE, in 3rd Inst. 165, defines perjury as follows: "It is 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." What was the cause in question? Mrs. Gould sought a divorce. She was entitled to it if she could produce evidence which would establish the statutory offense. The evidence which *Page 386 the defendant undertook to have the MacCauslan girl fasely deliver would, if true, have shown the statutory offense and thus establish the "cause in action." It must be borne in mind that the provisions of the Code must be construed according to the fair import of their terms to promote justice and effect the objects of law. The limit of the word "material," to issues actually joined in pleadings, is not the promotion of justice nor was it the legislative intent. No such defect in our criminal law was ever intended or supposed to exist.
The appellant further contends that the testimony was not competent and could not be received in evidence under the issues as they stood. Possibly not. But the right to amend the complaint still existed, and as soon as the new evidence, or what was claimed to be evidence, was discovered, it was a simple matter to allege it in an amended pleading. It was competent evidence to be given in an action for a divorce and was most material, if the pleading had given the proper grounds. In the case of Reg. v.Phillpotts (2 Den. Cr. Cas. 302) a paper had been produced which the defendant had falsely sworn was a copy of a record. It was not received in evidence, for the reason that the record was the better evidence. In reviewing the conviction of Phillpotts for perjury, his counsel contended, as the appellant's does here, that the question was as to whether the evidence to which the defendant swore was material to the issue then being tried, and inasmuch as it was not admitted in evidence it was immaterial. It was held by Lord CAMPBELL, C.J., all the rest of the justices concurring, that the circumstance that the evidence was inadmissible did not affect the question of perjury as it could not purge the false swearing; that if the evidence of the prisoner had been received it would have been material to the issue and, consequently, the false oath of the prisoner amounted to perjury.
In Reg. v. Gibbons (9 Cox Cr. L. Cas., 105) it was held that, although evidence was inadmissible in point of law, yet having been admitted and being relevant to the credit of *Page 387 a material witness in the cases, perjury could be assigned upon it. COCKBURN, C.J., in delivering the opinion, refers to the case of Reg. v. Phillpotts with approval, and says that "although in point of strictness the evidence was open to objection, yet it does not lie in the mouth of the defendant to say that the question was not one as to which he was not bound to speak the truth."
In State v. Waddle (100 Iowa 57; 69 N.W. Rep. 279) the statute provided that "If any person endeavor to incite or procure another to commit perjury, though no perjury be committed, he shall be punished." It was held that the state need not show that there was in fact a case pending.
In the case of Chamberlain v. People (23 N.Y. 85) the husband, in a case for divorce, was permitted to testify that he had no sexual intercourse with his wife, and yet she had borne a child. It was held that, although in an action between husband and wife, under the provisions of the Code, neither was a competent witness against the other to prove non-intercourse. Yet, inasmuch as the evidence had been given, the husband was guilty of perjury.
My attention has been called to no case in this state, nor in our sister states, in which the precise question here presented has been determined. There are two or three decisions in other states which hold that an action must be pending under the phraseology of the statute existing in their respective states. Under our statute, as we have seen, a person who testifies to any material matter to be true which he knows to be false in an action or a special proceeding or upon any hearing or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, is guilty of perjury. The suborning of a witness must of necessity precede the actual delivering of the false testimony, and the attempt to suborn must precede the actual consummation of the crime of suborning. There is nothing in the provisions of our statutes that makes the attempt to suborn a witness depend upon the accuracy of the pleader, provided the testimony is material upon the *Page 388 results sought to be obtained in the action. As to that, I have already shown that the evidence, if true, would have been sufficient to authorize the granting of a divorce. It was, therefore, in my judgment, material within the meaning of the Code.
As we have seen, the charge in this case was an attempt to commit the crime of subornation of perjury. It is not claimed that the crime of perjury was committed, nor even that subornation of perjury was consummated. It was only an attempt at subornation. It does not, therefore, matter whether all of the acts constituting perjury or subornation of perjury were present. The offense of attempting to commit a crime of perjury, as defined by the statute, depends upon the mind and intent of the person attempting the act and not upon the result, or the fact that in that particular instance it could not be perpetrated. So that a person may be convicted of an attempt to commit a larceny, even though there may be no property to steal. So also a person may be convicted of an attempt of extortion, even though the person upon whom the attempt was made was under no duress or fear, but instead was acting in connection with the police in order to bring about the extorter's arrest and conviction. (People v. Moran, 123 N.Y. 254; People v. Gardner,144 N.Y. 119.) In the former case, the defendant was passing around among the people gathered in a crowd and was seen to thrust his hand into a pocket of a woman and withdraw it therefrom empty. RUGER, Ch. J., in delivering the opinion of the court, said, "We are of the opinion that the evidence was sufficient to authorize the jury to find the accused guilty of the offense charged. It was plainly inferable from it that an intent to commit larceny from the person existed, and that the defendant did an act tending to effect its commission, although the effort failed. The language of the statute seems to us too plain to admit of doubt, and was intended to reach cases where an intent to commit a crime and an effort to perpetrate it, although ineffectual, coexisted. Whenever the animo furandi exists, followed by acts apparently affording a prospect of success *Page 389 and tending to render the commission of the crime effectual, the accused brings himself within the letter and intent of the statute." In the latter case, EARL, J., in delivering the opinion of the court, refers to the case of People v. Moran with approval, and says: "The question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor's mind and his conduct in the attempted consummation of his design. * * * An attempt is made when an opportunity occurs and the intending perpetrator has done some act tending to accomplish his purpose, although he is baffled by an unexpected obstacle or condition." Applying the rule of these cases to the one under review, it is quite apparent that the defendant intended to induce the MacCauslan girl to give false testimony in the action which Mrs. Gould had brought against her husband. The evil purpose was apparent. An opportunity occurred to her and she intended to accomplish her purpose. True, she was baffled by an unexpected condition. It turned out that the transaction which she had induced the girl to swear to was not alleged in the complaint, and consequently could not be given in evidence; but the criminal intent existed, and all of the elements constituting the attempt to commit subornation of perjury were established by the evidence. It would, therefore, seem to follow that if a person could be convicted of an attempt to commit larceny when there is no property to steal, and if a person can also be convicted of an attempt to commit extortion when there is no duress or fear, a person could commit an attempt at subornation of perjury even though the pleading in the action in which the perjury was to be committed, had not set forth in the allegations the precise act which the false testimony was designed to establish.
It is now suggested that the defendant might have been indicted under section 113 of the Penal Code, entitled "The bribing of witnesses." So, also, she might have been indicted under section 112 of the Penal Code, entitled "Inducing another to commit perjury." But the fact that the act charged is a crime under two or more sections of the Code does not *Page 390 require a reversal if the person is properly convicted under the section of the Code upon which the indictment is founded. In such cases the duty devolves upon the grand jury and the district attorney of determining under which of the sections of the Code applicable the indictment shall be found; but I am unable to comprehend the difference between the provisions of section 113 and that under which the indictment in this case is found with reference to the subject in controversy. To my mind its provisions are subject to the same criticism that is made by the defendant to the section upon which she has been convicted and now asks for a reversal of the judgment. The provision is as follows: "A person who gives or offers or promises to give, to any witness or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means fraudulently to induce any witness to give false testimony or to withhold true testimony, is guilty of a felony."
How can a proposed witness' testimony be influenced or how can he give false testimony or withhold true testimony when the testimony proposed to be given or withheld is not admissible and cannot be received in evidence upon the hearing or trial? If it has no materiality with reference to the subject-matter under investigation how can it harm or prejudice the rights of the parties or of the public? Should a joker induce a witness to state in his testimony that the moon was made of green cheese it might produce some merriment in the court room and the judge might commit the witness for contempt for a breach of decorum; still it would hardly be claimed that the joker was guilty of a felony under the provisions of this section. False testimony has a well-under-stood meaning. It must be such as tends to the prejudice of the rights of others or the public and have some materiality upon the subject-matter under investigation, in order to make the giving of it a felony.
Again, it will be observed that the statute prohibits the bribing of a "witness or a person about to be called as a *Page 391 witness." Similar provisions have been enacted with reference to the bribing of a juror. As soon as a juror is drawn, under the provisions of the statute, the law casts about the individual jurors a shield preventing any person approaching them for the purpose of influencing their determinations. So also the foregoing section of the Penal Code undertakes to protect a person summoned as a witness from like approach or influence, but the complainant in this case was not a witness or about to become a witness. She had not been summoned or subpœnaed. She was not known to either of the parties to the action, neither had they ever heard of her at the time that the defendant undertook to bribe her to give false testimony. It, therefore, appears to me that we should adhere to the beaten track followed in the Moran and Gardner cases, above referred to.
The judgment and conviction should be affirmed.
CULLEN, Ch. J., EDWARD T. BARTLETT and WILLARD BARTLETT, JJ., concur with WERNER, J.; GRAY and HISCOCK, JJ., concur with HAIGHT, J.
Judgment of conviction reversed, etc.