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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 434
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 435 The deed was not the property of the prisoner. He was at variance with the grantee, and had an interest in having it recorded. He desired to have a debt collected from her property, for which he had collaterally mortgaged his own. To secure this end, it was not enough that the title with which she had once parted had been afterward reinstated, unless he could establish that fact by legal evidence. Having clandestinely obtained the deed, he encountered, in the refusal of Mr. Clarke, an unexpected impediment in the way of having it proved and recorded. He could not compel the subscribing witness to make the proof, as he did not hold under the grantee. (1 R.S., 758, § 13.) The device to which he resorted, was the only available mode of securing the record evidence he desired. The grantor resided in the same town; but he could not apply to him for an acknowledgment, without the risk of detection and exposure, before the deed surreptitiously taken from the office of Mr. Moore could be recorded and returned. It was not enough, however, that he was ready to personate the character of subscribing witness, which he supposed he could do with safety, under cover of the justice's advice. The statute required an oath of the truth of the facts, essential to satisfy the officer taking the proof, and to justify the clerk in recording the instrument. (1 R.S., 758, §§ 12, 15.) To attain the desired end, he complied with this condition. The oath was administered in due form and by a competent officer. The facts to which he testified were material to the inquiry, which it was the duty of the magistrate to make; and if his testimony was willfully and corruptly false, he was guilty of the crime of perjury. (2 R.S., 681.) *Page 436
There is no force in the objection, that the deed which he proved was void for uncertainty. That was a matter over which the magistrate had no jurisdiction, and as to which the prisoner gave no testimony. The objeet of the proceeding was to secure record evidence of the execution and contents of the instrument; and if the facts to which he swore were material to that issue, the ultimate failure of his purpose through any inherent defect in the description would not mitigate the turpitude of his crime. But the deed was valid and effectual, as a reconveyance of the property inherited by Mrs. Tuttle from her father. (Jackson v.DeLancey, 4 Cow., 427.)
It is claimed that the indictment is bad, in charging that the oath was administered to the prisoner on "the Holy Scriptures" instead of the "Gospels," the term used in the statute. (2 R.S., 407, § 82.) The Scriptures include the Gospels; and the statute is complied with, when the oath is administered either upon the Evangelists, the New Testament, or the Bible, which embraces the whole gospel of revealed religion. It was unnecessary in the indictment, to specify the particular mode in which the prisoner was sworn; and the averment that the oath was administered by the magistrate in due form of law, is amply sufficient, even if the clause in question were to be rejected as surplusage. (Dodge v.State, 4 Zabriskie, 455; People v. Phelps, 5 Wend., 9;People v. Warner, id., 271; People v. Cook, 4 Seld., 84, 85.)
It was also unnecessary to aver in the indictment the antecedent circumstances connected with the title of Mrs. Tuttle to the property embraced in the deed, though it was proper to prove them on the trial, for the purpose of showing the relations which subsisted between her and the prisoner, and the motives which led to the commission of the crime. It was sufficient to allege the substantial and specific facts constituting the offense, without setting forth the evidence by which the truth of the averments was to be maintained.
There was no error in permitting the witness, Clarke, to testify to his refusal to prove the execution of the deed, when *Page 437 applied to for that purpose by Reynolds. The application was made at the request of the prisoner, and the result was reported to him by the messenger. It was part of the res gestæ, and it was material as matter of inducement.
Evidence was properly received, showing that the deed was surreptitiously taken from the office of Mrs. Tuttle's attorney. It had a legitimate bearing on the question of the prisoner's good faith, and reflected light on the motives which governed his subsequent action. (Hennequin v. Naylor, 24 N.Y., 139;Hendrickson v. People, 10 id., 31; People v. Larned, 7 id., 452.)
The motion to strike out the cross-examination of the prisoner's brother was properly denied. His testimony showed the facts in relation to the two mortgages, and the inducement to the commission of the offense.
The statement of the prisoner to Reynolds, the justice, was admissible for the same reason; and as he sought to shield himself under the advice of this witness, it was the right of the prosecutor to ascertain the state of facts on which that advice was obtained.
The judge was right, in refusing to instruct the jury in accordance with the various propositions submitted by the prisoner's counsel. The only one calling for particular observation, is the request to charge that, "if the jury believe the defendant was present, and saw the deed executed and delivered, then, if he thereafter set his name to it as a witness, and made the proof of acknowledgment, believing he had the right to do so, no conviction can be had." Such an instruction would have been inapplicable to the facts, and could only have tended to mislead the jury as to the law. There was no evidence on the trial that the prisoner was present, and saw the deed executed and delivered. No such fact was proved by the witness Spence. On the occasion to which he refers, Otis S. Gifford, the party to whom the deed in question was delivered, was not with his father; Mr. Clark, the elder Gifford and Spence, were the only persons there; and it does not appear that any deed was executed at that time. The evidence for the prosecution might not be sufficiently *Page 438 conclusive to satisfy the jury that the prisoner was absent, when the deed in question was executed and delivered to Otis S. Gifford, but there was no evidence to justify them in finding affirmatively that he was present at such execution and delivery. The judge had no right to submit to them a mere matter of speculative belief, not arising upon the proof. The proposition was also objectionable, as tendering to the jury a false issue on the principal question in the case. A mistaken belief by the prisoner, that he had a right to substitute himself for the subscribing witness at a subsequent period, without the knowledge of the parties, and that he could thus make himself a competent witness to prove the instrument for his own pecuniary benefit, could not justify him in falsely swearing that he became the subscribing witness, in fact, at the time the deed was executed. If he had testified to what he now claims to be the truth, on his examination by the magistrate, and had frankly stated that Mr. Clarke was the subscribing witness, who became such at the time of its execution, and that, four years afterward, without the knowledge or consent of the parties, he erased the name of the subscribing witness, and became such in his place, the proposition of the defendant's counsel would have been more pertinent to the issue.
The judge, however, gave him in another form, the substantial benefit of the instruction. He charged the jury "that if the defendant made the proof pursuant to the advice of his counsel, believing he might lawfully do so, the element of a corrupt intent would be wanting." He added a very appropriate caution to the jury, against overlooking the essential ingredient of good faith, in determining whether he really entertained that belief. "If you see," said the learned judge, "that there was a motive to induce the defendant to want the deed on record, by reason of Mrs. Tuttle's mortgage to T.F. Tuttle, and of the defendant's desire to have that mortgage foreclosed to relieve the collateral; if the advice was given by Reynolds to fall back upon; if you believe it was arranged between the defendant and Reynolds, that Reynolds should so advise for such purpose, then the *Page 439 advice would be of no avail as a defense." The soundness of this as a legal proposition is too clear for argument. So far as it was a commentary upon the tendency of the evidence, on a question of fact, which the judge fairly submitted to the jury, it was not the subject of legal exception. (People v. Vane, 12 Wend., 78; People v. White, 14 id., 111; Commissioners of Pilots v. Clark, 33 N.Y., 267.) It is quite apparent that the hypothesis of bad faith, suggested by the judge, is more in harmony with the proof, than that of good faith, suggested by the counsel for the defense. The possession of the abstracted deed by the prisoner; the delivery of it to his own attorney, with the avowed purpose of putting it on record, to promote his private advantage; the unexplained delay for several weeks, before the attempt was finally made; the application, through his attorney, to the subscribing witness, whom both of them recognized as the proper party to make the proof; the omission, when that attempt failed, to ask an acknowledgment by the grantor, who resided in the same town; the suggestion, originating with the defendant, that he should himself become a subscribing witness to the deed, and prove its execution ex parte in his own behalf; the guarded and hypothetical form of the opinion expressed by his attorney when that suggestion was made; the apprehension of the latter, after his interview with Mr. Clarke, that he might be implicated in the wrong connected with the possession of the instrument, and the consequent substitution of another officer to take the proof; the partial erasure, without his suggestion or sanction, and after the deed was taken from his office, of the name of the subscribing witness; all these were circumstances worthy of grave consideration by the jury, in determining the question whether the prisoner, in good faith, entertained the belief which he professed, as an excuse for the falsity of his oath; and we see no reason to doubt that their conclusion was rational and just.
It is due to the attorney to say, that it appears by the proof that he was inexperienced as a magistrate; that he had been withdrawn for some time from professional pursuits by military services during the rebellion; that he gave his assent *Page 440 hastily and without reflection to the suggestion of the prisoner; and that before it was finally acted on he was led to withdraw from further participation in the matter, by the circumstances of suspicion which surrounded it.
It is made the subject of a grave allegation of error, that during the progress of the trial, one of the associate justices had occasion to leave the bench for a few moments, to hand a paper to a person who was waiting in court to receive it; and that he was some twenty feet from the presiding judge when an objection to the admission of a deed was overruled. The claim that this vitiated the proceedings is scarcely entitled to serious consideration. The court was properly constituted, and all its members were in actual attendance. The statute neither requires that the judges should be seated during the progress of a trial, nor that they should be polled on the decision of every question of law. The rulings as to the admission and rejection of evidence are ordinarily made and announced by the presiding judge, in the hearing of his associates and with their presumed concurrence. The members of a judicial tribunal, from considerations of convenience, propriety and decorum, usually occupy the particular seats assigned to them; but when a session is in progress, with a quorum in actual attendance, the casual and temporary absence of one of the judges from a seat thus assigned, neither breaks up the court, nor impairs the validity of its proceedings. If the justice, in the present instance, had desired to dissent from the ruling of the presiding judge, the announcement of that fact, from the position in which he happened to be at the moment, would have been just as effectual as if made from the seat on the bench, which he had left a moment before, and to which he was then in the act of returning.
We think no error prejudicial to the prisoner occurred on the trial, and that the judgment of the Supreme Court should be affirmed.
DAVIES, Ch. J., HUNT, WRIGHT, SCRUGHAM, and PARKER, JJ., concurred in the foregoing opinion. GROVER, J., concurred in the result. BOCKES, J., was for reversal.
Judgment affirmed. *Page 441