State v. McCone

The opinion of the court was delivered by Ross, J. The contention is whether the indictment is legally sufficient when encountered by a demurrer. It is in two counts, and charges, or attempts to charge, the respondent with the commission of the crime of pcijury befoi*e the board of the civil authority of the town of Brighton. The respondent’s counsel claim that it is legally insufficient in many respects. It will be necessary to notice only a few of the claimed [119] insufficiencies. It is not alleged in either count that the board of civil authority was constituted, or had authority, to make additions to the check-list at the session being held. It is alleged that the board was constituted and in session to hear and determine challenges to the qualifications of persons whoso 'names were then on the check-list, and all alterations to he made in the list. If by the term alterations in, is meant additions to, the check-list, such meaning can only be gathered by inference. There is no sufficient allegation that the board had authority to add the names of persons to those then on the list. It is alleged that the respondent appeared before the board and requested to have his name added to, and inserted or included in, the check-list. It was upon this request that it is alleged the hearing was had and perjury committed, a subject over which it is not directly, and at least but inferentially, alleged that the board of civil authority had jurisdiction. The jurisdiction of the board in the matter, being special, should be set forth with certainty. It may be inferentially gathered from the entire indictment that the material question as respects the respondent, for trial by the board, was his right to vote in the. then coming freemen’s meeting in the town of Brighton; but no such allegation is to be found in either count of the indictment. This was the right which conferred the right to have his name placed on the check-list of the legal voters of the town. It was only with reference to this right that the alleged false testimony was material. Without a proper allegation that the respondent’s right to vote in the then coming freemen’s meeting was the material question, to be determined by the board of civil authority, and that the board was duly constituted and had jurisdiction of this question, the alleged false testimony given by the respondent has no materiality, and cannot support a conviction for perjury. There is no allegation in either count that the respondent was not legally entitled to vote in the then coming freemen’s meeting ■ in the town of Brighton, and none that he was not legally entitled to have his name placed on the check list. Without considering the other [120] defects claimed to be found in tbe indictment, those specified render the indictment fatally defective. The respondent's exceptions to the pro forma judgment of the County Court are sustained, the judgment overruling the demurrer reversed, and judgment rendered that the demurrer is sustained, the indictment adjudged insufficient and quashed, and the respondent discharged.