Guston v. People

By the Court, Geo. G. Barnard, J. In an indictment for perjury, charged to have been committed on the trial of a cause before the court, or an officer thereof, it is essential, 1st. That the name of the court should be stated, and that such court should have a legal existence., 2d. That the offense should be charged to have been committed in the county in which the indictment was found ; and, 3d. That it should appear on the face, or be alleged in the body, of the indictment, that the evidence on which the assignment of pérjury is based, was material to the determination of the issue, or at least proper to be offered, on the trial of such issue. [36] [First Department, Generar Term, at New York, November 7, 1871, The indictment upon which this plaintiff in error was convicted, is faulty in matters of substance: 1st. It is alleged that the action, upon the tidal of which the perjury is charged to have been committed, was pending in the Supreme Court of the city of Hew York, and that the referee who - administered the oath was appointed by the Supreme Court of the city and county of Hew York. There are no such courts known to the law; certainly none so designated, of which judicial notice can be taken, as having jurisdiction of an action for divorce. 2d. It nowhere appears in the indictment that the offense, if any there be, was committed within the city and county of Hew York. All of the testimony referred to in the indictment may have been taken out of the county, or out of the State of Hew York. 3d. It is alleged in the indictment, “that it then became and was a material issue to be tried before William C. Traphagen, whether the said John Gowan had committed adultery, as alleged by the plaintiff in the said actionbut it is nowhere alleged that the evidence adduced, or the questions calling out that evidence, were material to the determination of that issue. Ho information is given as to what was “alleged by the plaintiff in said actionand therefore it cannot appear on the face of such indictment, that.such evidence was material. The testimony which the plaintiff in error is charged with having falsely and corruptly given, may have been entirely immaterial. Bach count being vitiated by all of the defects above pointed out, and each defect being a fatal one, it is unnecessary to consider any of the other points made, as to the validity of the indictment, or any of the questions arising as to the admissibility of evidence offered at the trial. The judgment of the court of general sessions should be reversed. Judgment reversed. Ingraham, P. J., and Gardoao and Geo. G. Barnard, Justices.]