The' indictment charged that the defendant wrongfully, unlawfully and feloniously counseled, commanded, induced and procured Henry Paige to receive a bribe and absent himself from a hearing before the grand jury of the county of Washington; that the defendant had previously been arrested for violation of the Liquor Tax Law; that the said Paige Was used as a witness against him in the preliminary examination, and swore to'the illegal sale of liquors by the defendant; and that the defendant was held to-await the action of the next grand jury. That said Paige, was about to be subpoenaed as a wit*791ness to appear before the grand jury; that on December 20, 191Í, the defendant offered him twenty-five dollars if he would leave the State and go to Canada and stay there until after the January, 1912, grand jury had met and been discharged; that said Paige accepted the offer, agreed to absent himself, received the money from defendant, and did absent himself.
The district attorney claims the defendant was indictable as a principal under sections 2 and 379 of the Penal Law. Section 2 provides that “A person who directly or indirectly counsels, commands, induces or procures another to commit a crime is a ‘principal.’” Section 379 provides that “A person who is or is about to be a witness upon a trial, hearing or other proceeding before any court * * * who receives or agrees * * to receive a bribe upon any agreement or understanding * * * that he will absent himself from the trial, hearing or other proceeding is guilty of a felony.”
It is clear that Paige was guilty. The statute does not in terms apply to the briber. Section 2440 of the Penal Law makes it a felony to offer or promise to a witness a bribe for influencing the testimony of the witness, or to induce the witness to give false testimony. That section evidently does not make it criminal to induce a person to absent himself and thus not become a witness. Section 2441 only relates to a witness who has been subpoenaed.
In this case the witness was not in fact subpoenaed, but was about to be subpoenaed. It is evident that the defendant is not punishable unless section 2 applies to him.
If A bribes B to absent himself so that he may not be a witness, B is liable for taking a bribe. If B is reluctant to take the bribe but is advised and induced by 0 to take it from A, it is evident that 0 is liable under section 2 for advising and procuring B to commit the crime. (People v. McKane, 143 N. Y. 455.)
It is difficult to see how A is less liable than 0, for, to a greater extent than 0, he procured B to commit the crime. 0 only advised the taking of the money; A actually furnished it and made the corrupt bargain.
I think the purpose of section 2 was to provide for the punishment of a person who procures a crime to be committed, but *792who does not actually participate in it in such a manner as to otherwise bring him within the criminal law.
The judgment should, therefore, be reversed and the demurrer overruled and the defendant required to plead.
Betts and Lyon, JJ., concurred; Houghton, J., concurred in opinion, in which Smith, P. J., concurred.