
    The People, App’lts, v. Catherine B. Williams, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Criminal law — Indictment for perjury — Sufficiency of — Code Grim. Pro., § 291.
    It is provided by Code Grim. Pro., § 291, that an indictment for perjury shall contain proper allegations of the falsity of the matter on which the perjury is assigned. Held, that an allegation in the indictment that the defendant wickedly, knowingly, designedly, corruptly, falsely and feloniously testified to certain matters therein specified, was equivalent to an allegation of the falsity of the testimony and satisfied the requirement of the statute.
    2. Same—Pleadinqs in criminal cases—Departure from form prescribed by Code—When immaterial—Code Grim. Pro., § 684.
    
      Held, that if the section quoted were not liberally complied with, yet there was such a substantial compliance that the departure from’ the form prescribed by the Code, was pardoned by Code Grim. Pro., § 684, which provides that no departure from the form or mode prescribed by the Code in respect to any pleading renders it invalid unless it actually prejudiced the defendant or tend to his prejudice in respect to a substan tial right.
    Appeal from a judgment of the court of sessions of Monroe county, sustaining the defendant’s demurrer to an indictment for perjury.
    The District Attorney, for app’lts; J.A. Bachite, for resp’t.
   Dwight, J.

Section 291 of the Code of Criminal Procedure, provides that an indictment for perjury shall contain “ proper allegations of the falsity of the matter on which the perjury is assigned.” The indictment in this case contains the allegation that the defendant, “wickedly, knowingly, designedly, corruptly, falsely and felonously ” testified to certain matters specified, and it does not otherwise allege the falsity of the testimony given. For that reason the indictment was held insufficient.

Section G84 of the same statute provides that no departure from the form or mode prescribed by the Code in respect to any pleading * * * renders it invalid unless it have actually prejudiced the defendant or tend to his prejudice in respect to a substantial right. The two sections cited must be read together as bearing upon the sufficiency of the indictment in question.

And, first, is not the allegation of the indictment a substantial compliance with the requirement of section 291F Is it not an allegation of the falsity of the matter upon which perjury is assigned? It charges that the matter was falsely testified; is not that equivalent to the charge that the matter testified was false? But, second; if it be held that the allegation is not in full compliance with the requirement of section 291, is the departure anything more than a matter of form? and, if not, has it prejudiced the defendant or does it tend to his prejudice in respect to a substantial right?

We think the two sections read together uphold the form of pleading adopted by the district-attorney. The allegation that certain testimony, specified, was falsely given, differs only in form from the allegation that the testimony given was false. A man cannot falsely testify to that which is true, even though he intend to falsify; if what he testifies to is in fact true, he does not testify falsely.

In the case of the People v. Clements (107 N. Y., 205; 11 N. Y. State Rep., 384), the court of appeals held that an allegation that the defendant well knew the matter, sworn to, to be false, was a sufficient allegation of its falsity; and the court (by Rapallo, J.,) says: “The objection to this indictment, if there be any, was that the falsity of the statement sworn to was only argumentatively alleged. But that it was fairly and even necessarily to be implied from the facts stated is very clear; the objection was only to the form of the allegation.” And the indictment, in that case, was justified under the provisions of section 285 of the same statute, which declares that no indictment is insufficient * * * by reason of imperfections in matters of form which do not tend to the prejudice of the substantial rights of the defendant on the merits.

The provisions of section G84 {supra), seem to be even more directly applicable to these cases than those of section 285. The latter section is general in its application, and is intended to cure defects in form under the general rules of criminal pleading. Section 684, more specifically, cures deviations from the particular forms prescribed by the statute itself, of which the section forms a part, including the special requirements of section 291 in respect to indictments for perjury.

The defect in this indictment, if any, being merely in the form of the allegation of the falsity of the testimony specified; and such defect of form not being such as to prejudice, or tend to prejudice, the defendant in respect to a substantial right, we must hold it to be immaterial, and the indictment good.

The judgment sustaining the demurrer must be reversed, the demurrer overruled, and the case remitted to the court of sessions to proceed upon the indictment.

Judgment reversed, and case remitted to court of sessions of Monroe county, to proceed on the indictment.

All concur; Haight, J., in the result.  