I am of the opinion that the judgment of conviction of the defendant Spielberg must be reversed and the indictment dismissed. Concededly there is no evidence tending to show that he participated in the preparation of the false affidavit upon which the indictment is predicated or that he had any knowledge of any of its contents or that it was to be presented. There was no statute or rule of the department given the force of statute, which required the submission of the affidavit. There was at most a mere custom of which the defendant Spielberg was not shown to have knowledge. As to the other defendants, however, I am of opinion that the evidence was sufficient to justify their conviction.
I, therefore, vote to reverse as to the defendant Spielberg and to dismiss the indictment, and to affirm the judgment of conviction as to the defendants Dorsen and Shepard.
McAvoy, J., concurs; Martin, P. J., and Merrell, J., dissent and vote to affirm as to all defendants; Untermyer, J., dissents as to the defendants Dorsen and Shepard, but concurs as to the defendant Spielberg.