#### The People of the State of New York, Respondent, v. Alpheus S. Frank, Appellant.

Second Department,

October 9, 1908.

Crime—subornation of perjury—variance between indictment and proof.

Where an indictment charges subornation of perjury solely for inducing the plaintiff in a civil action to swear falsely that she never saw a certain person between specific dates, a judgment of conviction will be reversed where the evidence shows that the witness did not so testify, but on the cpntrary stated that she saw said person on three occasions between said dates, although she actually committed other perjuries and plead guilty when indicted.

Appeal by the defendant, Alpheus S. Frank, from a judgment of the County Court of Westchester county, rendered on the 23d day of July, 1907, convicting the defendant of the crime of subornation of perjury.

*David H. Hunt,*for the appellant.

*Francis A. Winslow,*for the respondent.

Per Curiam :

■ The defendant has been convicted of the crime of subornation of perjury. The indictment charged him with feloniously and willfully instigating, inducing and procuring one Mae Herbert, the *100plaintiff in a civil action for negligence, to swear falsely upon the trial of her case that she “ never saw the said Abbott Woods between the first day of April, 1904, and the 27th day of June in the same year,” whereas in truth and in fact she had seen him frequently between' those days, and that this was a material question upon the trial of the civil case. To sustain the charge against the defendant, the stenographer who reported the civil case was called as a witness and all of Mae Herbert’s evidence in that case was introduced. It appears upon an inspection of her testimony in the civil case, however/ that she did *not*testify that she never saw Abbott Woods between the 1st day of April, 1904, and the 27th day of June in the same year; without doubt she committed perjury during her case.; she was indicted and plead guilty and has served a term for the offense, but she did not swear falsely in the respect charged in the indictment here, for the very obvious reason that she did not testify she never saw Woods between the given dates, but on the other hand testified on three distinct occasions that she - did see and meet Woods some time in April, 1904. It is unfortunate that the indictment as drawn did not meet the case. From an examination of the record we think it is plain how the learned district attorney fell into this error; the indictment upon which Mae Herbert was arraigned, and to which she plead guilty, charged her with having testified falsely in her civil case that she “ never saw the said Abbott Woods between the first day.of April in the year one thousand nine hundred and four and the twenty-seventh day of June in the same year;” and the indictment in this case was drawn from and followed the language of the indictment of the Herbert case. This question had not been raised in'tlie Herbert case, for she plead guilty ; the error was, therefore, not noticed and found its way into this.

The statement of the perjury of Herbert set forth in the indictment is that she never saw Woods between certain dates; the People have tried to sustain the indictment by showing1 distinctly that she' did not so testify, but swore that she had seen Woods between these dates, namely, on the occasion in April when she. met him. It is apparent, therefore, not only that the charge of the indictment was 'not proved but Was actually disproved, and the conviction may not stand..

*101Inasmuch as the conviction cannot be sustained on account of this fundamental variance between the charge in the indictment and the proof, no good purpose would be served by discussing ■ the questions of corroboration and the weight of evidence which were ably presented by counsel for both parties at the bar.

The judgment of conviction must be reversed, the verdict set aside and a new trial ordered.

Woodward, Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment of the County Court of Westchester county reversed, verdict set aside and new trial ordered.