#### AARON HARRIS, Plaintiff in Error, *v.*THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

*Mebropolitan Hire*Marshal— *investigation by, as to origin of*fires— *Ghap.*563, *Laws of*1868 — *Same felony may be cha/rged in different counts of an indictment*— Yaiimiee— *when not fatal.*

Chapter 563, Laws of 1868, creating the office of metropolitan fire marshal, giving him power to' administer oaths, and providing that false swearing in any matter or proceeding before him should he deemed perjury, and be punishable as such, has not been repealed by the subsequent statutes in relation to such officer.

The plaintiff in error was convicted of perjury, committed by him in the course of his examination before the fire marshal of the city of New York. The indictment contained two counts, one alleging perjury in the oral testimony given before the fire marshal, and the other alleging perjury in swearing to an affidavit before that officer, containing, in substance, the same allegations. *Held,*that the indictment was good. Though different felonies cannot be charged in different counts, yet the same felony may be charged in different ways in different counts, to meet the facts of the case.

The second count of the indictment charged the plaintiff in error with having sworn falsely in his affidavit, “ of and concerning several necessary and material matters contained therein, in substance and to the effect following, that is to say,” etc. The affidavit set out in the indictment stated that there were on the premises 60,000 cigars, while the affidavit produced upon the trial stated that there were 65,000 thereon. *Held,*that the variance was not fatal; that where an oath is set out *• in substance and to the effect following,” a literal copy is not required.

*People*v. *Warner*(5 Wend., 371) followed.

*2Upon an inquiry by the fire marshal into the origin and cause oí a fire, where suspicion exists against the witness, who was the owner of the property, such owner’s assertion as to the value of the property contained in the premises at the time, is a proper subject of investigation.

Writ of error to the Court of General Sessions of the city and county of Hew York, to review the conviction of the plaintiff in error of perjury.

*Benjamin K. Phelps,*for the defendants in error.

*Ira Shafer,*for the plaintiff in error.

The verdict is repugnant, inconsistent and void. The jury say that he is not guilty of the offense described in the first count, but is guilty of the one described in the second, and both counts describe in the same language, the same identical offense. (Barb. Cr. Law, 367; 1 Chit. Cr. Law, 690; 2 Hawk., 47, § 8; *O'Connell*v. *The Queen,*11 Clark *&*Fin., 155; *Hayworth*v. *State,*14 Ind., 590; *State*v. *McCue,*39 Mo., 112; *People*v. *Ah Ye,*31 Cal., 951; *Guenther*v. *The People,*24 N. Y., 100; *State*v. *Lorumbo,*Harper [Va.], 183; *Allen*v. *Aldrich,*9 Foster [N. H.], 163 ; *Jewett*v. *Davis,*6 N. H., 518; *Holman*v. *Kingsbury,*9 id., 109; *Coffin*v. *Jones,*11 Rich., 95 ; *Brunswick*v. *McKean,*4 Greenl., 508.)

Brady, J. :

The plaintiff in error was convicted of perjury, at the December . term of the General Sessions, 1873, and sentenced to ten years’ imprisonment in the State prison. The perjury alleged in the indictment, was committed on the 13th day of September, 1873, before George H. Sheldon, fire marshal of the city of Hew York, who was investigating the cause, origin and circumstances of a fire which occurred on the 5th of September, 1873, at Ho. 10 Hester street, in a building occupied by the plaintiff in error and his copartner, as a tobacco manufactory. This investigation was entered upon by the fire marshal, in pursuance of the duty and authority imposed upon him by chapter 563, of the Laws of 1868, and the several acts supplementary thereto. The plaintiff in error swore, on this examination, that, at the time of the fire, he was not in the city of Hew York, but was in the city of Troy. He also *swore,*that, at the time of the fire, there was in the building in *3which the fire occurred, a stock belonging to him and his copartner, consisting of 65,000 cigars, 185,000 cigarettes, 400 pounds of Havana tobacco, of the value of one dollar and fifty cents per pound, 645 pounds of Virginia tobacco, of the value of sixty-five cents per pound; and that he and his partner sustained a loss by the fire, of between five and six thousand dollars.

The indictment contains two counts, one alleging perjury in the oral testimony given before the fire marshal, and the other alleging perjury in swearing to an affidavit before the same officer, containing in substance the same allegations. The plaintiff in error was convicted upon the second count of the indictment. On the trial, evidence was given in relation to the merchandise upon the premises, on behalf of the people. It is claimed by the people that the evidence shows that the fire was designed, and for the purpose of making a false claim against the insurance company, although that is not important in regard to the accusation of which the plaintiff in error was convicted. The first objection taken on the trial, was to any testimony being given in support of the indictment, on the ground that the act of May 4th, 1868,* creating the office of metropolitan fire marshal, giving him power to administer oaths, and condemning false swearing in any proceeding before him, had been repealed. This objection is not tenable.

1. The act of May 4,1868, † has not been repealed. The Revised Statutes gave to the chief of police the authority to investigate the origin of fires. ‡ The act of May 4, 1868, created the office of metropolitan fire marshal, and made it his duty § to “ examine into the cause, circumstances and origin of fires (occurring in those portions of the metropolitan police district in which regular patrolmen of metropolitan police are authorized and appointed), by which any building, vessels, vehicles, or valuable personal property shall be accidentally or unlawfully burned, destroyed, lost or damaged, wholly or partially; and to especially inquire and examine whether the fire was the result of carelessness or the act of an incendiary. The metropolitan fire marshal shall take the testimony on oath, of all persons supposed to be cognizant of any facts, or to have means of knowledge in relation to the matters *4herein required to be examined and' inquired into, and cause the same to be reduced to writing,” etc. -

The third section of the act gives him *“*power to issue a notice, in the nature of a subpoena ** * **to compel the attendance of any person as a witness before him, to testify in relation to any matter which is, by the provisions of this act, a subject of inquiry and investigation by the said marshal; ” “to administer and verify oaths and affirmations to persons appearing as witnesses before him; and false swearing, in any matter or proceeding aforesaid, shall be deemed perjury, and shall be punishable as such.”

This act was followed, by the act of April 26, 1870, * which was amendatory of an act passed in the same year, † and is as follows : “ Section 44. * * * The board of police shall have power to appoint a fire marshal, chief clerk, and assistant clerk, who shall hold office during the pleasure of the board, and such board, marshal, and clerks, shall have the like powers, and perform the like duties, as those provided by chapter 563, of the Laws of 1868, so far as they are applicable to the city of New York and the compensation of such marshal and clerks shall be the same as now fixed in and by said acts.” ‡

The charter of 1873, § gave the appointment of the fire marshal to the fire commissioners, but conferred upon the marshal ǁ all the powers, and imposed upon him all the duties, given and imposed by the previous statutes relating, to that office.

The act of 1871¶ did not,' in any way, limit the powers and duties of the marshal: By section 4, it invested him with the same powers conferred by the act of 1868, ******and also the same powers conferred upon the superintendent of police of the city of New York, by the Revised Statutes. The marshal, by these acts, was authorized to examine into the cause, circumstances and origin of fires, by which any building, vessels, vehicles, or any valuable personal property should be accidentally or purposely destroyed, lost or damaged, wholly or partially; and especially to take the testimony on oath of all persons supposed' to be cognizant of any facts, or to have means of knowledge in relation to the matters *5therein required to be examined and inquired intoalso to compel the attendance of witnesses, and to administer oaths and affirmations to persons appearing as witnesses before him. It is very clear, therefore, that, for any false swearing as to any matter legitimately within the sphere of the marshal’s powers, an indictment may be had, and a conviction secured on competent evidence. The further objection, that there was no legal proof that the witness, Mr. Sheldon the fire marshal, was the officer referred to in the indictment, is equally unavailable. He testified, without objection, that he was then, and had been fire marshal from the twenty-first of May preceding his examination; and on cross-examination stated by whom appointed, and the manner of his appointment.

The indictment, as already suggested, was predicated of the oral testimony of the plaintiff in error, and his affidavit signed by him and sworn to before the fire marshal. Two counts were employed to develop both phases of the offense. It is, perhaps, unnecessary to cite authorities to show this to be an authorized mode of pleading. It may be said, however, that though a defendant cannot be charged with different felonies in different counts, yet he may be charged with the *same felony,*in different ways, in several counts, to meet the facts of the case.* The offense herein was precisely the same, but charged in different ways. The plaintiff in error was charged with having sworn falsely in his affidavit, of and concerning several necessary and material matters contained therein, *“*in substance and effect following, that is to say,” etc. One of the matters stated, as alleged, was that there were on the premises 60,000 cigars; whereas, by the affidavit, when it was produced, the statement made was, that there were 65,000 cigars; and in this respect there was a variance between the proof and the charge. The plaintiff in error urges this as a fatal error; but he is mistaken. When the oath is set out “in substance and to the effect following,” a literal copy is not required. It is not necessary to set forth the affidavit, etc., on which perjury is assigned verbatim, †

“ To my apprehension,” said Marcy, J., “ the substance and effect of an instrument in writing cannot, either in common parlance or legal import, be understood to mean an exact copy of it.” Ho apprehension could be reasonably entertained, that the plaintiff in *6error, being convicted of the offense charged upon the paper, could be convicted a second time for the same offense. The variance is clearly a clerical error.

These views dispose of the objections to the authority of the fire marshal, to the admissibility of the affidavit on account of the alleged variance, and to the legality of the conviction under one of the counts. There remains to be considered, however, the propriety of investigating the question, as to the value of the property as stated in the affidavit, to which objection was made, and of which it seems to have been claimed perjury could not be assigned. It is true that the value of the property, in the abstract, is not at all material to the question of how the fire originated, but when the inquiry is extended, and the examination embraces not only that subject but another, namely, whether it was the result of carelessness or the act of an incendiary, it may become material to know whether any misrepresentation has been made in reference to the property assumed or said to be destroyed, and, if yea, whether it furnished a motive which might influence one to become an incendiary, whoever he might be. The complaint against the plaintiff in error was two fold: that he had sworn he was absent from this city when the fire took place, when he was not in fact absent; and, secondly, that he had falsely augmented the value of the property on his premises at the time of the fire. In seeking the origin and circumstances of the fire, and with a suspicion against the plaintiff in error, his asserted value of the property, if enhanced beyond its true value, was an important and material element, and one necessarily embraced legitimately within the inquiry established. It was not erroneous, therefore, either to admit the evidence on the question of value, or submit the issue created by it to the jury. The testimony in reference to the absence *of the plaintiff in error from the city, was strong on his behalf, it would seem from the appeal book, but we cannot say that it was sufficient to overcome the testimony given on behalf of the people. The design of the statute, in creating a fire marshal, and investing him with broad and ample powers, was to detect and punish the crime of arson, which, without that officer, might not be discovered; and, therefore, the legislature made false swearing before him perjury, if it related to any '• subject legally within his authority. The facts and circumstances *7which would tend to show the act of firing, might in many instances become valuable in demonstrating the perjury committed, particularly those beai’ing on the existence of motive, which is always coupled with design.

The judgment must he affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.

*

 Laws 1868, chap. 563, p. 1168, vol. 2.

†

*Supra.*

‡

**2 Rev. Stat (5th ed.), 990.

§

 Sec. 2.

*

 Chap. 383.

†

 Chap. 137, § 44.

‡

**Sec. 21.

§

 Laws 1873, p. 504.

ǁ

 Sec. 76.

¶

 Laws, p. 1277, chap. 584.

**

*Supra.*

*

 Barbour’s Cr. Pr., 340, and cases cited,

†

 The People v. Warner, 5 Wend., 271.

*

 The other opinions of this term are contained in the preceding volume.