The defendant was asked through the media of several questions, whether he owned or had any beneficial interest in 688.8 shares of stock of the Saratoga National Bank. He answered in the negative. Upon the premise that his answers were false an Extraordinary Grand Jury for Saratoga County has indicted him for perjury.
The stock in question, so far as the records show, was issued and is listed in the name of Herbert' C. Stone. The evidence presented to the Grand Jury that defendant owns the stock, or has a beneficial interest therein, was purely circumstantial. The indictment was dismissed at Special Term on three grounds: (1) —that it was not found on sufficient legal evidence; (2) — that illegal and prejudicial matters were brought to the attention of the Grand Jury; and (3) — that defendant was not permitted to explain his answers. From the order of dismissal the People have appealed to this court.
The chain of circumstances upon which the People rely began with the bank holiday in 1933. The opinion of the Special Term summarizes in considerable detail the evidence thereof that was presented to the Grand Jury and it is unnecessary for the purposes of this opinion to repeat this summary. Circumstantial evidence, of course, may suffice to sustain an indictment or conviction. But to sustain either an indictment or conviction evidence of this character must be such as to exclude, to a moral certainty, every hypothesis but that of guilt. (People v. Woltering, 275 N. Y. 51.) A grand jury may only indict when the evidence before them, unexplained and uncontradicted, would in their judgment warrant conviction by a petit jury.
To sustain the indictment against the defendant one essential element in the People’s case was proof that the defendant owned, or had a beneficial interest in, the stock in question. Unless the circumstances shown exclude every reasonable hypothesis save that of ownership in the defendant the indictment cannot be sustained. The general rule is that a court may not weigh the evidence presented to a grand jury or attempt to pass upon the credibility of testimony offered. However, where the issue is tendered, the court may determine whether any reasonable mind could find the circumstances sufficient to satisfy the requirements of the- circumstantial evidence rule for such an issue presents a question of law.
In my opinion it is unnecessary in this case to answer that question. It is clearly apparent, to my mind at least, that whether the circumstances presented satisfied the rule quoted *681is a very close issue. Hence the introduction by the People of any illegal or prejudicial evidence assumes a vital significance. The record reveals at least two instances where evidence of such character was brought to the attention of the Grand Jury. An official of the bank, and a former officer were permitted to say, in substance, that they assumed or understood that the defendant owned the stock. Also testimony was elicited to show that defendant on other occasions and in connection with other property used various individuals as nominees, or, in other words, that on such occasions his real ownership was concealed by the use of dummies. Testimony of this character was inadmissible and highly prejudicial. It is quite impossible to believe that it did not influence the decision of the Grand Jury to find an indictment.
The public policy of the State is that a grand jury can receive none but legal evidence (Code Grim. Pro., § 256). Obviously this statute was enacted to safeguard a defendant’s rights to a presumption of innocence and it cannot be ignored. It has been whittled away to some extent by cases which hold that where an indictment is supported by sufficient legal evidence, the receipt of some illegal evidence does not invalidate it. I find no well considered authority, however, which holds that the receipt of illegal evidence may be ignored where it is clear that such evidence must have influenced the deliberations of the grand jury.
The order of the Special Term should be affirmed.