#### PEOPLE v. WILLIAMS.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Peu.jury—Indictment.

Pen. Code, § 96, provides that “a person who swears 51 * * that any * * * affidavit * * by him subscribed, is true, in an action 15 * * or states in his affidavit * * * any material matter to be true which he knows to be false is guilty of perjury.” Sections 97-99 provide that irregularities in the administration of the oath, incompetency of the witness, or knowledge as to the materiality of the testimony is no defense. Section 100 provides that the making of a deposition is deemed complete from the time when it is delivered by defendant to any pefson with intent that it be uttered. *BeW,*that an indictment for making a false affidavit in an action need not allege that it was delivered to any person to be uttered, as section 100 is intended to provide a rule of evidence, and not as a part of the definition of the crime.

3. Appeal—Discretion.

The order of proof is discretionary with the trial court.

’ S. Perjury—Evidence.

In a prosecution for making a false affidavit on appeal, evidence as to the outcome of the case on the appeal is inadmissible.

4. Witness—Credibility—Cross-Examination.

The extent to which a witness may be cross-examined in regard to the commission of crimes for which he has not been tried, for the purpose of *512impeaching his credibility, is largely within the discretion oí the trial; court.

5. Same.

Where the hostility of a witness towards accused has been shown, it is not reversible error to exclude further evidence as to his hostility.

6. Criminal Law—Appeal—Instruction.

Where the court instructs in substantial accordance with a request, the refusal to use the exact words of the request is not ground for reversal.

7. Same.

That isolated portions of a charge are erroneous is not ground for reversal if it appears that the jury could not have been misled thereby.

Appeal from court,of sessions, Orange county.

John A. Williams was convicted of the crime of perjury, and front the judgment of conviction, and from an order denying a motion for a new trial on the minutes, and from an order denying a motion in arrest of judgment, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ-

Wagner & Fisher, for appellant.

Frank L. Smith, Dist. Atty., for the People.

PER CURIAM.

The sufficiency of the indictment in this case-presents an important question, and was the one most persistently urged on the argument by the appellant as a ground for the reversal, of the judgment. In the indictment it was, in effect, alleged that the defendant willfully, knowingly, and corruptly made oath before-an officer authorized to administer the same that a certain affidavit by him subscribed was true, and that the affidavit was made and entitled in an action in the supreme court. The statements contained in the affidavit were then set forth, and it was alleged that they were false. It was also alleged that a motion was noticed in the action, that upon the hearing of such motion the affidavit made by the defendant was used, and that the false statements contained in it were material to the determination of the motion.

Upon the trial, before any testimony was given, the defendant moved that the indictment be quashed and set aside upon the grounds that the indictment was insufficient and defective, that it did not state an ofíense or crime, that it did not state the crime of perjury, and that it was not sufficient in substance or form. The defendant also moved that the indictment be dismissed and quashed upon the specific ground that it contained no allegation that the defendant ever delivered the affidavit to any person with the intention that it should be uttered or published as true, and that it contained no-allegation that the affidavit specified in the indictment was made by the defendant with any intention or for the purpose of having it delivered to any person, or with the intention that it should be used in any proceeding. The motion was denied by the court, obviously' upon the ground that the sufficiency of the indictment could be-raised only by demurrer. In this conclusion the court was manifestly in error. Section 331 of the Code of Criminal Procedure excepts from its provisions that the objections mentioned in section *513323 of that act can be raised only by demurrer the objection that the facts stated do not constitute a crime, and expressly provides that such an objection may be taken at the trial, under the plea of not guilty, and in arrest of judgment. Assuming, as we must, that the grounds upon which the decision was based were untenable, still, if the court properly denied the motion, its ruling should be upheld,, although it was placed upon erroneous grounds. Thus the question, of the sufficiency of the indictment is before us for determination.

Section 96 of the Penal Code, which defines the crime of perjury,, so far as it is applicable to the question in this case, reads as follows :■

> “A person who swears * * * that any * * * affidavit * * * by him. subscribed, is true, in an action, * * * or states in his * * * affidavit * * * any material matter to be true which he knows to be false, is guilty of perjury.”

The indictment in this case having charged that the defendant willfully, knowingly, and corruptly made oath before an officer authorized to administer the same that the affidavit by him subscribed was true, and that such affidavit was made and entitled in an action in the supreme court, and that the statements contained in it were material, and that the affidavit was used in such action, it was, we' think, sufficient, under the provisions of section 96 of the Penal Code. It seems to be well settled in this state that if an indictment avers the offense as the statute defines it, the averment is sufficient. In framing an indictment on a statute, all the circumstances which constitute tire definition of the crime in the statute, so as to bring the accused precisely within it, must be stated; but no other description of the manner in which the offense was committed is necessary than that contained in the statute. Phelps v. People, 72 N. Y. 334, 349; Eckhardt v. People, 83 N. Y. 462; People v. West, 106 N. Y. 293, 12 N. E. 610; People v. Weldon, 111 N. Y. 569, 574, 19 N. E. 279; People v. King, 110 N. Y. 418, 18 N. E. 245; People v. Rockhill, 74 Hun, 241, 26 N. Y. Supp. 222; People v. Flaherty, 79 Hun, 48, 29 N. Y. Supp. 641; U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571. The precise words • used in a statute to define a crime need not be strictly pursued in the indictment, but words conveying the meaning of those employed may be used. It follows that, if section 96 of the Penal Code is not in any way changed or modified by the subsequent sections relating: to the crime of perjury, the indictment was sufficient. It is, however, contended by the appellant that section 100 is so far a part of " section 96 as to require an allegation in the indictment of the matters stated in that section. Upon examining chapter 5, which relates to the crime of perjury and the subornation of perjury, we find that section 96 defines the crime of perjury. Section 97 provides that any irregularities in the mode of administering oaths is • no defense to the prosecution of that crime; section 98 that the incompetency of the witness is no defense; and section 99, that the-witness’ knowledge of the materiality of his testimony or statement is no defense. Section 100 declares that:

> “The making of a deposition or certificate is deemed to be complete, within • the provisions of this chapter, from the time when it is delivered by the defendant to any other person with intent that it be uttered or published as true.”

*514"We think that this last section should not be construed as being ■.so far a part of section 96, which defines the crime of perjury, as to make it a part of the statutory definition of the crime, but that its purpose was to establish a rule of evidence as to when a deposition is to be deemed complete. Hence we conclude that, as it was •charged in the indictment that the defendant willfully, knowingly, and corruptly made oath that the affidavit subscribed by him was true, that it was made in an action, that it was false, and that such false statements were material and used in the action, the indict•ment was .sufficient without specially alleging that the affidavit was • delivered by the defendant to another person with an intent that it be uttered or published as true.

We find nothing in the case of People v. Albow, 140 N. Y. 130, 35 N. E. 438, and the other similar cases cited by the appellant, which would justify his contention. These cases are to the effect that, while a criminal charge may be supported by inference from the facts which imply the existence of the principal fact constituting the offense, yet the principal fact must be charged in the indictment. The principal fact in this case was that the appellant made •a false affidavit in an action, which was used therein. This was -.averred in the indictment, and it contained a sufficient statement of the facts and fairly apprised the accused of the crime of which he was charged. Under such circumstances, the indictment should not be held insufficient by season of any narrow and technical objections as to its- form. People v. Spiegel, 143 N. Y. 107, 38 N. E. 284; People v. Buddensieck, 103 N. Y. 487, 9 N. E. 44; People v. Weldon, 111 N. Y. 569, 19 N. E. 279; People v. Dimick, 107 E. Y. 13, 14 N. E. 178; People v. Klock, 48 Hun, 275. These considerations lead to the conclusion that the indictment was sufficient, and therefore that the court properly overruled the defendant’s motion to quash the ■.indictment and in arrest of judgment.

The appellant also contends that the court erred in admitting in -evidence the affidavit made by the defendant without first requiring the people to show that it had been delivered to another person with an intention that it should be uttered or published as true. Evi- • denee was given upon the trial which tended to show that it was. ¡thus delivered. Thus the question raised by that objection related • only to the order of proof, and, as that was discretionary, we find mo reversible error in the ruling.

The appellant’s third point relates to the insufficiency of the indictment, which has been already disposed of, and hence need not ;be further considered. On the trial the following question was :asked the witness Henry T. Sanford: “Did you cause this notice of ’motion to which your attention has been called to be served on Mr. Palmer?” This was objected to as not in evidence, and as in-, competent. The, objection was overruled, and the defendant excepted. In this ruling we find no reversible error. That the notice-of motion was served as testified to by the witness-, and that the affidavit of the defendant was actually read on tjie hearing, seem to be clearly established by the evidence in the case.

The defendant offered in evidence an order reversing the judg*515ment in the action in which the affidavit was made. This was objected to as incompetent and inadmissible, and upon the ground that, whatever became of the judgment subsequent to the making of the motion was immaterial. The objection was sustained, and the defendant excepted. We think this exception was not well taken. It is not apparent how the subsequent reversal of the judgment could in any way have affected the question of the defendant's guilt or innocence of the crime of perjury in making an affidavit used in the action. The perjury was the same whether the judgment was reversed or affirmed. People v. Hayes (Sup.) 24 N. Y. Supp. 194, 201.

The defendant also offered in evidence all the papers attached to the notice of motion and affidavit of the defendant which were used on the motion. The people’s counsel objected to the admissiqn of the papers except the notice of motion and affidavit of the defendant, which had already been admitted in evidence. This objection was sustained, and we think properly. The other papers that accompanied the affidavit of the defendant, except the notice of motion, were in no way material in determining the question whether the defendant had made the false affidavit for which he was indicted.

Upon the cross-examination of Alfred 0. Lewis, the defendant’s counsel in substance offered to show that the witness had verified a complaint in the action of Lewis et al. v. Yagel, which was untrue. This was objected to, and the objection was sustained. We find no error in this ruling. If the witness had been convicted of perjury, then, under the provisions of section 832 of the Code of Civil Procedure and section 714 of the Penal Code, the fact of such conviction might have been proved by the cross-examination of the witness. The court stated that, if the complaint was not true, they ought to have had the witness indicted for perjury, and excluded the evidence, without stating the particular ground upon which it was excluded. The extent to which such an examination may go to test the credibility of the witness is largely in the discretion of the court. People v. Casey, 72 N. Y. 393; People v. Oyer & Terminer Court of New York Co., 83 N. Y. 436, 460. We are disposed to think that the question whether this evidence should be admitted so far rested in the discretion of the trial court that its rejection was not reversible error. Upon the further cross-examination of the same witness, after he had testified, “I have a good deal of feeling against Mr. Williams so far as what he has done to me, I have, and I am going to try to punish him, to vindicate myself,” he was asked, “How much money have you spent in trying to punish him?” This was objected to. The objection was sustained, and the defendant excepted. He was then asked, “How much time have you devoted, and how long a time, sir, in trying to convict that man?” This question was objected to as irrelevant, immaterial, and improper. The objection was sustained, and an exception taken. He then testified, “I am going to try to do all I can to vindicate myself, as far as the law goes.” We find nothing in this ruling which would justify a reversal of the judgment. The defendant was permitted to *516show the feeling against him existing in the mind of the witness. The evidence had already disclosed the hostiLcy of the witness. The extent to which an examination may go to prove the hostility of a witness is in the discretion of the trial judge. As sufficient evidence of the hostility of the witness had already been given, the defendant was not harmed by the exclusion of further evidence on that subject, and hence the ruling presents no error that would justify a reversal. People v. Brooks, 131 N. Y. 321, 329, 30 N. E. 189; People v. Webster, 139 N. Y. 73, 34 N. E. 730.

The remaining questions raised by the defendant relate to the charge of the court. The defendant’s counsel asked the court to charge:

> “That if the defendant honestly believed, when he made the affidavit, that the men he, saw at West Oneonta were Lewis and Lamont, although he-was mistaken, he is not guilty of perjury in that part of the affidavit.”

To this the court replied:

> “I charge you that he must have made that affidavit with an intent to-commit a crime, and must have knowingly asserted the material facts in that allegation to be true. Defendant’s Counsel: Do I understand your honor to decline to charge in the language that I have asked? The Court: Yes. (Exception by defendant’s counsel.) Defendant’s Counsel: Further, if the defendant honestly believed that one of the men that he saw come-into that hotel was A. G. Lewis, and the other he took to be Lamont, although in fact it was neither of them, then he cannot be convicted of perjury, so far as that part of the affidavit is concerned. The Court: If the jury believe, under the facts and circumstances of this case, under all the-evidence, that he was mistaken as to A. G. Lewis and Judge Lamont,—honestly mistaken, if they believe that,—then, of course, they should acquit him. Defendant’s Counsel: You do not charge in the language that I ask?' The Court: No, I charge as I have. (Exception by defendant’s counsel.) Defendant’s Counsel: Further, if the witness was honestly mistaken, made that statement, and honestly believed it to be true, although he was mistaken, he is not guilty of perjury. The Court: I charge you, if you believe, under the facts and' circumstances of this case, that he did believe,, when he made that statement to Sanford, that he had seen Lewis and Lamont at those places, and that he was mistaken,—honestly mistaken,—you will acquit him. Defendant’s Counsel: But in the precise language I have-asked, your honor does not charge? The Court: No. (Exception by defendant’s counsel.) Defendant’s Counsel: Further, that if the man Sanford did not draft the affidavit in the language of the defendant, and the defendant did not know its contents, then it is not the affidavit of the defendant, and he is not guilty of perjury. The Court: I charge you that if he swore to and subscribed to that affidavit, and the contents of it were false, and that Sanford informed him of the contents of that affidavit, he is guilty of the crime charged in this indictment. Defendant’s Counsel: I except to that language. The Court: With the other facts and circumstances that I have stated. ' Defendant’s Counsel: Your honor declines to charge in the language which I last asked. The Court: Yes. (Exception by defendant’s counsel.) Defendant’s Counsel: If Sanford, the draftsman of the affidavit, did not draw the affidavit in the language given him by the defendant, and the defendant in good faith made the affidavit, relying upon and believing that Sanford had correctly recorded his language, then the defendant, is only answerable for the language that he gave Sanford, and the affidavit as he understood it was drawn; and if, at the time he gave that language to Mr. Sanford, and made the affidavit, he gave that language in-good faith, believing, it was true, and made the affidavit in good faith, believing it contained only the language he gave Sanford, and believing that language was true, then he cannot be convicted, although he may not have-seen Mr. Lewis or Judge Lamont at the times and places stated in the affi*517davit. The Court: I charge that, and charge, in addition to that: If this defendant made an unqualified statement of facts to Mr. Sanford, which he put in that affidavit, which he did not know to he true, it is equivalent to a statement of that which he knew to be false. Defendant’s Counsel: I except to that in this case, and ask the reverse, because there is no such allegation in the indictment at all. The Court: I charge it in connection with your proposition. Defendant’s Counsel: I except to that.”

We think the defendant was entitled to have his first request charged, in substance at least. The court did not at first charge the request as made, but, instead of doing so, charged that the defendant must have made an affidavit with an intent to commit a crime, and must have knowingly asserted the material facts in the allegation to be true. But, as will be seen by an examination of the portion of the record quoted, the court charged that, if the jury believed, under the facts and circumstances of the case, that the defendant believed when he made the statement to Sanford that he had seen Lewis and Lamont at those places, and that he was mistaken,-—honestly mistaken,—it should acquit him. An examination of the whole charge renders it quite manifest that the court instructed the jury in substantial accordance with the request of the defendant first above quoted. Under these circumstances we think the refusal of the court to charge as requested did not constitute such an error as would justify an interference with the judgment. Isolated portions of a charge will not be seized hold of for the purpose of criticism, if the charge, as a whole, conveys to the jury the correct rule of law on the question, although detached sentences may be erroneous; and if the language employed is capable of different constructions, that will be adopted which will lead to an affirmance, unless it fairly appears that the jury was, or at least might have been, misled. Caldwell v. Steamboat Co., 47 N. Y. 282; Losee v. Buchanan, 51 N. Y. 476, 492; People v. McCallam, 103 N. Y. 587, 9 N. E. 502; Hickenbottom v. Railroad Co., 122 N. Y. 91, 25 N. E. 279. In considering whether a single proposition charged is erroneous, it should be construed in connection with the whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable. And, although a part of the charge excepted to, when isolated from the context, may be erroneous, yet the judgment will not be disturbed for that cause, if it appears that the jury could not have been misled. Sperry v. Miller, 16 N. Y. 407, 413. Applying the principles of these cases to the charge under consideration, it becomes quite manifest, we think, that the refusal of the court to charge as first requested could not have misled the jury, as the true rule of law governing the question was conveyed to it clearly by other and subsequent portions of the charge.

The only remaining question suggested by the appellant as a ground for reversing the judgment is the following language, used bv the court in its charge to the jury:

> “If this defendant has walked into the temple of justice at its very altar, struck down the goddess of justice with impious hand, he should be punished, and that swiftly. But, upon the other hand, if" he is innocent, he should be acquitted of this charge, and it would be your duty, as well as your pleasure, no doubt, to do so. The importance of this case lies beyond this trial as well as in it. Perjury is a dangerous crime, hard to meet, and *518hard to prove; but if it can be said that in your county perjury can walk into your courts and come out triumphant, human life,, human liberty, and the rights of property in your county are in jeopardy. Therefore I say to you, examine this evidence carefully, weigh it in the scales of honest judgment, apply to it your intelligence, and no matter what the consequences are, because with the consequences or punishment of this crime you have nothing to do. That responsibility rests somewhere else, and you should not consider it, but weigh this evidence, and fearlessly render such a verdict as you think it justifies.”

The defendant contends that this portion of the charge was exceedingly prejudicial to him, and that its tendency was to inflame the feelings and passions of the jury, and prevent it from exercising that calm and impartial examination of the evidence bearing upon the question at issue which it was its duty to bring to its consideration. When we consider this portion of the charge in connection with the whole charge, we are unable to hold that it was misleading, or that its tendency was to excite the passions of the jury, or prejudice it in the examination of the questions involved.

Having thus considered all the questions raised by the appellant in his brief, and having found none that would justify a reversal, it follows that the judgment and orders appealed from should be affirmed.

Judgment of conviction of the court of sessions of Otsego county, and orders appealed from, affirmed, and, after the judgment is entered in the judgment book, a certified copy of the entry shall forthwith be remitted to the clerk of Otsego county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.,