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 Hewitt 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 *280of erection and owned by a certain corporation, which was being-built for the purpose of a daim It was sought to support the warrant under two sections of the Penal Code. . The first (§ 639) makes, it an offense willfully or maliciously to displace, remove, injure or destroy a dam lawfully erected upon any water within the State.. The second (§ 654) provides that a person who unlawfully and willfully destroys or-injures any real or personal property of another,, shall be punished as therein specified. The Court of Appeals held that if the warrant were issued under section 639, it should have-alleged that the accused “ willfully or maliciously ” threatened to do-the act;, and if it were issued under section 654 it-should have averred that he so “ unlawfully and willfully ” • threatened. “ The-fatal vice of the information and warrant,” said Bartlett, J., “ is. that they utterly fail to aver the unlawful and criminal intent which, constitutes crime.” In the case at bar the charge was that the present, plaintiff committed perjury by swearing falsely in a material matter upon the hearing of a cause pending before a District Court justice.. This allegation charged no crime. Swearing falsely is not perjury. (2 Bish. Crim. Law, § 1046.) The testimony given must be “ willfully and knowingly false,” or the affiant must in his testimony state-some material matter to be true which he knows to be false. (Penal Code, § 96.) The vice in the affidavit here is precisely the same as-it was in the case cited. There was here a total defect of evidence-as to the existence of the essential fact that the accused knew that the testimony which he gave was false. And further, there was a. total omission even to charge him with such knowledge. In the-case cited, the court held that because the wrongful purpose was. lacking in the information, “ the act of the recorder was wholly without jurisdiction, and the warrant and all proceedings under it were absolutely void.” (P. 543.) The conclusion here is necessarily the same. • ■
The only distinction suggested between that case and the present, is, that here there was; -as the majority- think, evidence from which the justice had a right to infer' the corrupt intent. The fallacy of this, attempted distinction is that there was no such evidence-, and no such inference. The justice was asked to, and he did, infer false swearing. But there both proof and charge stopped. He was not asked to infer the corrupt intent, either from the inherent *281character of the alleged false swearing, or from independent evidence. The defendant was careful to limit his charge to perjury by false swearing — which, without its corrupt intent, was not perjury at all. The error, it seems to me, is in failing to distinguish between independent inferences, namely, between the inference of false swearing and that of corrupt intent with regard thereto. The testimony which the plaintiff gave before J ustice Stiner in the District Court was not in terms contradictory of that given upon the earlier occasion. The plaintiff denied that he had complained to Smith about the sights he had seen in the house in question. Upon the earlier occasion he admitted, not that he had complained to Smith about the sights he had seen, but of the inherent character of the house. He also admitted telling Smith that he had seen a woman partly nude at the windows of the house, but not that he had^ complained to Smith of it. Undoubtedly, however, an inference might justly have been drawn that the denial was in substance inconsistent with this previous testimony. But it was not necessarily or literally so. So far as the defendant deposed that the denial was false because of the inference which he had drawn from the previous statements, and so far as the justice coincided with him, I have nothing to say. That was reasonable and justifiable. The very fact, however, that the testimony given upon the one occasion was not in terms inconsistent with that given upon the other; that the inconsistency depended upon inferences to be drawn from the words used on the respective occasions, gives force and point to the requirement of the statute. If ever there was a case when, before charging the crime of perjury, further proof of the corrupt intent was indispensable, surely it was here, where the perjury assigned was the denial of previous statements which had to be pieced together and combined to place before the mind the concrete affirmative upon which the falsity of the denial was predicated. The defendant went through this mental operation, and drew the inference which brought him to the point where he felt justified in charging that the denial was false. He stopped there, however, and the omission to supplement this with the further charge of corrupt intent was evidently deliberate. There was no reason why the defendant should not have drawn the further inference of willful and corrupt perjury, had such inference ' *282"been permissible, or had his conscience allowed it. The undoubted fact is that he did not venture to make the further charge.
It is suggested that there may have been further proof in addition to the defendant’s affidavit. This, however, is negatived by the pleadings. The plaintiff averred that the defendant made and filed the affidavit, and that, upon that affidavit, he caused the justice to issue, and the justice did, in fact, issue, the warrant. That averment is admitted in the answer. The plaintiff further averred that under and in pursuance of said affidavit so made and filed, and said warrant so issued, he was arrested. That, too, is admitted. It is plain, therefore, that the provision of sections 148 and 149 of the Code of Criminal Procedure were not. otherwise resorted to, and that the defendant cannot shield himself under any presumption that further evidence showing a corrupt intent was submitted to the justice.
It is said, however, that even upon the statements contained in the affidavit, the magistrate has reasonable ground to infer the coi - rupt intent. The only suggestion upon this head in the majority opinion is that the plaintiff knew what testimony he had given in October, and that there was no presumption that he had forgotten it in November. This may be quite true, but it does not touch the real question. Possibly, probably even, the plaintiff in November remembered, in a general ways what he had testified to in October, not necessarily the precise words, but their substance or general import.' But yet he may, in perfect good faith, have denied complaining to- Smith of the sights in the house, honestly believing that the denial was entirely consistent with his previous statements. That depended upon the construction of language, with regard to which he could honestly draw inferences as well as the defendant or the justice. Whether he drew such inferences corruptly or innocently. depended upon more than liis mere memory. It, of course, depended ■ upon that in a measure. But it also and mainly depended upon the precise questions put to him upon-the previous occasion and the precise answers which he gave thereto. . Upon the trial before Justice Stiner his attention was not called to these precise questions and answers. BLis previous testimony was not read to him or referred to in any specific or pointed way. He was simply asked a single question, namely, whether on the previous trial he gave a specific *283answer to a specific question. That particular question was never in fact put to him upon the previous trial and, consequently, he never answered it -yea or nay. How, then, can it be said that his ■denial of itself evidenced a corrupt intent ? The latter could only be evidenced by proof that - he believed he had given testimony ■upon the previous trial which amounted or was equivalent to that which he so denied; and of this there was not a scintilla of evidence direct or inferential in the defendant’s affidavit, or in the extracts from the plaintiff’s testimony quoted therein. It follows that the affidavit was hopelessly barren of proof or charge of corrupt intent, and that the case is precisely, parallel to Hewitt v. Newburger (supra).
The only question remaining is whether the defendant was responsible for the arrest. His responsibility is made out upon the pleadings. He admits, as we have seen,- that he made the affidavit upon which the justice acted. In this affidavit he “asks that the defendant be arrested and held to answer ” upon the charge which it •contains. He also admits that the warrant was issued and the plaintiff arrested upon this affidavit and request. In the concluding paragraph of the complaint it is alleged that the defendant so caused the •arrest of the plaintiff with intent to injure the plaintiff. To this .allegation the defendant interposes a negative pregnant, namely, a •denial that he caused the arrest of the plaintiff with intent to injure the plaintiff. He thus admits that he caused the arrest, but did not •cause it to injure the plaintiff. It is clear, therefore, that the defendant was, like the- defendant in Hewitt v. Newburger (supra), “ active .and officious in procuring the arrest.” He cannot, therefore, escape upon the plea that he did no more than state his case to the 'magistrate, leaving the question as to the propriety of a warrant to that officer’s judgment. (Von Latham v. Libby, 38 Barb. 339.) The latter case was distinguished in Miller v. Adams (52 N. Y. 409, 413). .Judge Gboveb said : “ There (in Von Latham v. Libby) all that was done by the defendant was to present the case for the action of the magistrate. Here the attorney of the defendant applied to the pudge to issue the attachment, and delivered it to the sheriff for service. This clearly made the defendant-liable in case the attachment was void for want of jurisdiction in the judge or for any other • cause.”
*284Upon the pleadings and proofs as they stood when the plaintiff rested, a prima faeie case of a false arrest for which the defendant was liable was made out, and the nonsuit was erroneous. ■
The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, J., concurred.
Judgment affirmed, with costs.