Supreme Court—General Term—First Department.

*January,*1887.

#### PEOPLE v. CLEMENTS.

Indictment eoe pee juey—Evidence oe good chabacteb.

A charge to the effect that proof of the defendant’s good character should not he considered by the jury if, upon the other proof in the case, they should reach the conclusion that he was guilty is error. Defendant’s good character is a subject to be taken into consideration by the jury in determining his guilt or innocence in the first instance. It is error in any case to charge the jury that evidence of good character is of no avail.

An indictment against defendant for perjury in willfully swearing to the best of his knowledge and belief to the truthfulness of a report to the banking department of the State of a bank of which he was cashier averred in various forms that the defendant had knowledge that the statements made in the report and schedules thereto attached, were false and untrue, but contained no direct averment that those statements were, or either of them was, in point of fact, false and untrue. *Held,*that the omission of the direct averment of the falsity and untruthfulness of the statements was a fatal defect in the indictment.

Appeal by defendant George Clements from a judgment ■of the Court of Oyer and Terminer of Washington County-convicting him of perjury.

The facts appear in the opinion.

*Hughes*¿f* Northrup, for defendant, appellant.

*283' *JSdgar Hull,*district attorney for the people, respondents.

Bocees, J.

This is an appeal from a conviction and sentence of the defendant to the state prison for perjury. The defendant was convicted in the Washington County Oyer of the crime of perjury in willfully swearing, to the best of his knowledge and belief, to the truthfulness of a quarterly report, make by the State Bank of Fort Edward, to the banking department of the State, of which bank he was cashier ; which report purported to contain a true statement of the condition of the bank on the morning of March 22, 1884.

We are of the opinion that the conviction and judgment in this case must be reversed. There are several errors, as we think, in the admission of evidence, and also error in the charge of the learned judge to the jury and in his refusal to charge as requested, which required a reversal as above indicated. But in view of our conclusion on the objection to the sufficiency of the indictment, hereafter considered, we deem it unnecessary to examine these subjects of error. There is one exception, however, going to the charge of the learned judge and to his refusal to charge as requested, that may well be briefly noticed. The charge of perjury was based on an averment that the defendant committed the crime in swearing to the truthfulness of the report “ to the best of his knowledge and belief” ; and evidence was given tending to sustain this charge. The defendant put in proof of a countervailing character, which, as was claimed, showed that the report was according “ to the best of liis knowledge and belief,” true : and he was himself examined as a witness in his own behalf, and gave evidence tending to sustain such alleged defence. Further evidence was also given showing the defendant to have been of good character in all respects, and no evidence was given or offered to gainsay this fact. On this branch of the case the learned judge charged the jury as follows :•—•

“ Defendant has offered proof of his previous good character. That kind of proof is always admissible on a criminal trial, *284but it is not a defense. When the crime is sufficiently established it is not entitled to any influence. There are cases where that kind of testimony ought to have great weight. Take the case of the commission where it was uncertain who the perpetrator was; and circumstances pointed strongly towards an individual so that they tended to establish the crime against him, but leaving it somewhat uncertain; in such a case proof of previous good character would weigh strongly, and it has been said, and very properly, that a man who has a clean character has always one standing witness with him. How far that kind of evidence ought to have weight in the determination of this case depends on how you conclude in regard to the fact. If you become convinced that tins report, the subject of this indictment was false, that defendant at the time knew it to be false, then previous good character is of no avail whatever.”

Touching those remarks which were in the nature of in structions to the jury, the defendant’s counsel requested the judge to charge “ that evidence of good character is required to be considered by the jury on the question of guilt before determining the question of guilt.” The learned judge replied to this request: “ I decline charging any differently from what I have as to that.” To this ruling the defendant entered exception. This instruction, as we think, should have been given, and its refusal was error. The tenor of the charge was to the contrary of this request. It was to the effect that the proof of defendant’s good character should not be considered by the jury, if upon the other proof in the case they should reach a conclusion that he was guilty. But the defendant’s good character ivas a subject to be taken into consideration by the jury in determining his guilt or innocence in the first instance. Were it otherwise the evidence would go for nothing in the case and this too when the question was, whether the defendant had committed perjury in swearing to matters “to the best of his knowledge arid belief ” ; the evidence against him being circumstantial to a very considerable extent, if not wholly so, and as to *285which there was at least some proof of an exculpatory character, a case of all others when good character might, and probably would be an important factor bearing upon the question of innocence or guilt. But the question here persented is not an open one. It is settled favorably to the exception on authority. The charge here given is much like that given in *Remsen*v. People, 43 N. Y., 6. The judge in that case instructed the jury that when the evidence is positive leading to a conviction logically and fairly derived of guilt from all the testimony the simple fact that a person possesses precious good character will be of no avail; that it is only in eases when the jury have a well reasoned doubt, a doubt logically arrived at, arising from all the testimony, that evidence of good character steps in and takes effect. The court held that such charge was clearty erroneous and well calculated to mislead the jury to the prejudice of the prisoner: and it was then said that, “ It was delusive to say to the jury that the fact of good character was to be considered in every case, no matter what the other testimony might be, and yet that in a class of cases, by reason of the character of the other evidence, good character would be of no avail; that is, that the jury must exclude from their minds, in considering that class of cases, all evidence as to character. It was in effect saying to them that in such cases evidence of good character was not admissible to effect the result, although permitted to be laid before them. It was error to charge the jury, that in any case evidence of good character would be of no avail. There is no case in which the jury may not, in the exercise of sound judgment, give the prisoner the benefit of a previous good character. No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities that a person of such character would be guilty of the offense charges, that the other evidence in the case is false, or the witnesses mistaken.” We extract freely from this case because of the direct application of the argu*286ment to this in hand. To the same effect is the decision in *Stover*v. People, 56 N. Y., 315, and in *People*v. Moett, 23 Hun, 60-65. The conviction and judgment should be reversed because of the error above considered, even if the record disclosed no other ground of error.

But we are of the opinion that there is a radical difficulty-in' the case growing out of the insufficiency of the indictment. An objection to the sufficiency of the indictment was raised by demurrer; also at the close of the case on the people’s evidence; and also by motion in arrest of judgment after verdict.

Passing some other points of alleged insufficiency, we do not find it charged by direct averment that the statements made in the report and schedules thereto attached on which the crime of perjury is predicted, were or that either of' them was false or untrue. It is averred and in various forms of averment, that the defendant had knowledge that those-statements were false and untrue; but there is no direct averment in the indictment that they were, or that either of them was in point of fact false and untrue. An averment that the defendant knew they were untrue, is quite different from an averment that they were in fact untrue. The one-goes to the fact, the other to the knowledge of the fact. The indictment is not framed on the theory that the defendant swore to knowledge and -belief, without having any knowledge or grounds for his belief, as to the facts sworn to by him, hence that he was guilty of perjury whether the facts-sworn to by him in the report were or were not true, for it is laid in the indictment that he well knew such facts were false and untrue. The averment that he well knew that the statements sworn to by him were false, does not supply an averment that such statements were untrue in fact, or obviate its necessity. Both averments were necessary to make the pleading good in this case. It is laid down in Wharton’s Am. Cr. Law, “ That the general averment that the defend, ant swore falsely upon the whole matter will not be sufficient ; that the indictment must proceed by particular aver*287ments, termed assignment of perjury, to negative that which is false; that it is necessary that the indictment should expressly contradict the matter falsely sworn to by the defendant, ” Section 2259; and further, that in a case like the present, when the accused swears to his belief, it is necessary to over that the fact sworn to was otherwise, and that he knew the contrary of what he swore to. *Ibid,*section 2261. The rule of pleading as here laid down is, that both averments are necessary in a case like the present. In *People*v. *Gates,*13 Wend. 311, when the defendant was indicted for obtaining the signature to a bond and promissory note by false pretenses, the court said, “ It is not sufficient merely to state that the defendant did falsely pretend ?—setting forth the several pretenses; but after stating the false pretenses at large, the pleader must by averments falsify each pretense which he intends to rely on at the trial, as he would in an indictment for perjury.” In that case the indictment was held insufficient, the court holding that the prosecution must fail, 1. Because the indictment was insufficient, and 2. If in sufficient, then it was unnecessary and improper to receive the evidence of any false pretenses, because none were laid. The Code of Criminal Procedure, section 281, also recognizes the necessity of setting forth in the indictment “ proper allegations of the falsity of the matter on which the perjury is as signed.” The necessity for such averments arises out of the settled rule that all facts and eircumstances necessary to constitute the offense must be specifically stated in the pleading, and that facts not averred can not be proved, or go for nothing if proved. *The People*v. *Gates, supra; The People*v. *Miller,*2 Park, Cr. Rep., 192. On principle and on the authorities above cited, the omission from the indictment of the averment above considered is fatal to id, and the conviction thereunder cannot therefore be allowed to stand. Without such averment the record is imperfect, as it fails to show the commission of the offense of which tho defendant is convicted. The objection rests on more than a mere technicality; it goes to the merits of the case »s presented on the record-*288The conviction and judgment must, be reversed; and inasmuch as the indictment is insufficient, the defendant must be •discharged.

Conviction and judgment reversed and defendant discharged.

Lebaned, P. J. and Landón, J concur.