#### The People of the State of New York, Respondent, *v.*James H. Davis, Appellant.

First Department,

December 6, 1907.

Crime — perjury — false oath on. qualification of bail.

A surety on a bail bond who falsely states in his affidavit of qualification and on his examination under oath before the magistrate that he owns specific real estate of a certain value is guilty of perjury.

The sufficiency of a surety is a subject of judicial inquiry and the false state.ments aforesaid are material to the issue.

Appeal by the defendant, James H. Davis, from a judgment of the Court of General Sessions of the Peace in and for the county of Yew York, rendered on the 26th day of August, 1907, convicting the defendant of the crime of perjury.

*Wilford H. Smith,*for the appellant.

*Robert S. Johnstone*of counsel [*William Travers Jerome, Distndct*Attorney], for the respondent.

Clarke, J.:

On December 28, 1906, Hon. Robert C. Cornell, one of the city magistrates of the city of Yew York, was sitting in the First District Magistrate’s Court, and there was pending before him a complaint or information charging one Leavelle with the crime of assault. The magistrate, after an examination, made an order holding Leavelle for trial and fixed the amount of bail. Thereafter the appellant, Davis, appeared before the magistrate who questioned him concerning his property. He described his property and said it was of record in his name. A bail bond and affidavit of justification were then prepared. Davis signed the undertaking and the affidavit. The magistrate duly administered the oath to Davis and, upon the statements contained in the affidavit, he accepted him as surety. Leavelle and Davis, as surety, executed the undertaking and acknowledged the execution thereof before the magistrate, and the prisoner was discharged from custody.' In the affidavit Davis swore that he was *570a resident.and freeholder within the county and State of Hew York, and was worth the sum of $1,000 over and above all his just debts and liabilities, and that his property consisted-of a house and lot of land on the south side of One Hundred and Twenty-second street, 200 feet west of Amsterdam avenue, worth $90^000, subject only to a mortgage of $45,000, and that the title thereto was of record in his name'in the office of. the register of the county of Hew York. Davis was indicted for perjury for feloniously, knowingly, willfully, corruptly and falsely swearing to the truth of said statement. Hpon the trial it was conclusively shown that the statement as to the ownership of the property stated in the affidavit was false and known to be false and Davis was found guilty as charged. From the judgment entered thereon this appeal is taken.

The appellant urges that the indictment is fatally defective in failing to charge that the alleged false statements were made in a material matter, and in failing to state sufficient facts showing that such statements were made in a material matter.

The indictment sets forth fully the substance and nature' of the proceedings before the magistrate and the defendant offering himself as surety; it sets forth fully the facts showing the subject of inquiry depending before the magistrate, namely, whether he would accept the defendant as surety upon .the undertaking therein described, and alleges that it was “ then and there necessary that the said Robert C. Cornell, such magistrate as aforesaid, should know the circumstances of the property of the said James H. Davis in order that he might determine whether he would.or should take, accept and. approve the said, James H. Davis as' such hail and'surety upon the undertaking aforesaid.” ■

It is -trim that to constitute the crime of perjury the false statements must have been material to the issue or inquiry. The question here was whether the magistrate would accept .Davis as surety ■and to that end it- was clearly material that, he should know the circumstances Of his property. • .

Section 569 of the Code of Criminal Procedure provides that:

“ The qualifications of bail are as follows:

> “1. Fie must be a resident and a householder or freeholder within the State, and, unless the magistrate otherwise direct, within the county;

> *571“ *2.*He must be worth the amount specified in the undertaking, exclusive of property exempt from execution. * "* * ”

Section 572 of said Code provides that: “ The surety or sureties must in all cases justify by affidavit taken before the magistrate. * * * ”

Section 573 provides: “ The district attorney, or the magistrate, may thereupon further examine the sureties Upon oath, concerning their sufficiency, in such manner as the magistrate may deem proper. The questions put to the sureties and their answers must be reduced to writing, and must be subscribed by them.”

Section 575 provides: “ When the examination, is■ closed the magistrate must make an order either allowing or disallowing the bail, arid must forthwith cause the same with the affidavits of justification and the undertaking of bail to be filed with the clerk of the court to which the depositions and statement must be sent as prescribed in section 221.”

It is clear from reading these sections together that the sufficiency of the surety is the subject of judicial inquiry, and that whether or no the prisoner will be admitted. to bail upon the undertaking by the proposed surety depends upon the judicial determination that said surety has sufficient property to respond to the obligation in case there is a breach. Therefore, what the surety produces by way of evidence, whether in his original affidavit or upon further justi-' fication upon question and answer to establish his sufficiency, is material to that issue.- If the original affidavit sufficiently discloses the possession of property to satisfy the magistrate that the bail is good,, there is no need for question and answer. In the case at bar the magistrate did first question the proposed surety, and then -the result of said inquiry was put in the form of an affidavit sworn to by the appellant. -

If the. statements as to the ownership of the specified property by Davis were not material, then tli.ere can never be any warrant for examination as to specific property. The bare statement that the surety is worth a certain sum Would close the inquiry, and the provisions for justification are idle. Such holding would- open wide a door for straw bail. “ If the matter falsely sworn to is circumstantially material or tends to support and give credit to the witness in respect to the main fact, it is perjury.” ( *Wood*v. *People,*59 *572N. Y. 123.) Here the main fact was the sufficiency, of the surety. The matter falsely sworn to tended to support and give credit in respect to that main fact and so was perjury.

We have examined the record and have found no errors committed to the prejudice of the defendant and conclude that the evidence sustains the verdict. .

Therefore, the judgment should he affirmed.

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

Judgment affirmed.