
    SUPREME COURT—APP. DIVISION—FIRST DEP.,
    June 1910.
    THE PEOPLE v. ARTHUR G. TILLMAN.
    (139 App. Div. 572.)
    (1.) Perjury—Sufficiency of Indictment.
    An indictment for perjury in giving false testimony need not set forth the facts upon which the materiality of the evidence depends; it is sufficient if it charges generally that the evidence was material.
    (2.) Same—Judicial Notice—Charter City of New York.
    The court will take judicial notice of the provisions of the charter of the city of New York.
    (3.) Same—Evidence.
    An indictment for perjury in giving false testimony before commissioners, appointed by the mayor of the city of New York, to conduct a special examination into the acounts and methods of the bureau of licenses will not be held defective on demurrer where by a general allegation it is alleged that the testimony was material, even though the defendant, who falsely testified that he had not received money from the proprietor of a common show in that part of the city known as Jamaica, is not alleged to have been connected with the city bureau of licenses, and although the person who paid the money was not required to pay a license. This, because under the general allegation that the testimony was material, the fact that a license was required might be proved, and although the defendant was not connected with the bureau of licenses, his testimony in respect to the receipt of the money might be material as a connecting link establishing corrupt practices in the bureau of licenses.
    Appeal by the plaintiff, The People of the State of New York, from an order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 15th day of December, 1909, allowing a demurrer to the indictment against the defendant.
    The opinion of the Court of General Sessions is published in People v. Tillman (63 Misc. Rep. 461).
    
      Robert S. Johnstone, Deputy Assistant District Attorney, for the appellant.
    
      Henry W. Unger [Abraham Levy with him on the brief], for the respondent.
   Laughlin, J.:

The indictment charges the defendant with the crime of perjury, which, on the 23d of October, 1908, the time the indictment was found, was defined by section 96 of the Penal Code (now section 1620 of the Penal Law), and was found by a grand jury in the Court of General Sessions of the Peace in and for the county of New York. The grounds of the demurrer are that the indictment does not conform to sections 275 and 276 of the Code of Criminal Procedure, and does not state facts sufficient to constitute a crime. The point upon which the demurrer was sustained is that it appears on the face of the indictment that the testimony alleged to be false was not material within the contemplation of the statute. Ho attempt is made to sustain the order on any theory other than this. The contention in support of the demurrer is that the indictment fails to state facts sufficient to show that the crime was committed in that it is not shown that the testimony was material, and, on the contrary, it appears that it was not.

It is charged in the indictment that on the 16th day of October, 1908, the defendant duly appeared as a witness before the commissioners of accounts of the city of New York, who had theretofore been duly appointed by the mayor, and who were by his direction conducting a special examination ” into the “ accounts ” and “ methods ” of the bureau of licenses, which is alleged to be a municipal office attached to the mayor’s office, and on being duly sworn by one of the commissioners then and there falsely testified that he had never received any money from one Francis M. Edwards, who, it is alleged, was the proprietor of a common show in that part of the city known as Jamaica. It is charged, in effect, that it appears by the provisions of the charter, of which we may take judicial notice, that it was the duty of the commissioners of accounts, among other things, to “ make such special examinations of the accounts and methods of the departments and offices of the city and of the counties of New York, ¡Richmond, Queens and Kings, as the mayor may from time to time direct, and such other examinations as the said commissioners may deem for the best interests of the city, and report to the mayor and the board of aldermen the results thereof,” and that “ for the purpose of ascertaining facts in connection with these examinations they shall have full power to compel the attendance of witnesses, to administer oaths and to examine such persons as they may deem necessary.” (Greater N. Y. Charter [Laws of 1901, chap. 466], § 119.) It is further alleged in the indictment that “ at and upon the said examination by and before the said commissioners of accounts as aforesaid it then and there became and was material whether he, the said Arthur G. Tillman, ever received any money from one Francis M. Edwards, the proprietor of a common show in that portion of the City of New York commonly called Jamaica.”

It is conceded that it is not necessary that the indictment should set forth the facts upon which the materiality of the evidence depends, and that it is sufficient if it charges generally that the evidence was material, and this rule of law appears to be fully sustained by the authorities. (Wood v. People, 59 N. Y. 117; People v. Grimshaw, 33 Hun, 505; 30 Cyc. 1434, 1435, 1436; 16 Ency. PL & Pr. 343, 344; 2 Bishop New Crim. Proc. [4th ed.] § 921; 2 Wharton Grim. Law [10th ed.] § 1304.) The principal question, therefore, is that upon which the case was decided below, namely, whether the indictment shows that the testimony cannot be material and thus destroys the allegation that it was material. The theory of the opinion below and upon which the order is sought to be sustained is that since there is no allegation that the defendant was connected with the bureau of licenses, it must be presumed that he was a stranger thereto, and that it is wholly immaterial to any inquiry concerning the methods ” or “ accounts ” of the bureau of licenses whether he received any money from Edwards, the proprietor of a common show at Jamaica, it appearing from the allegations of the indictment that the ordinances requiring that common shows be licensed are confined to the county of ¡N"ew York. We do not deem it necessary to decide whether if the allegation in the indictment that the ordinances requiring that common shows be licensed was in force in the Gounty of New York were material, it is sufficiently overcome or modified by the other allegations to the effect that there shall be a branch office of the bureau of licenses in each borough to admit proof upon the trial that the ordinances were in force throughout Greater New York. Under the general allegation that the false testimony was material to the investigation, every fact essential to show its materiality including an ordinance that the proprietor of a common show required a license might be proved. ¡Nor do we, for the same reason, deem it necessary to decide whether the statement in the indictment that Edwards was the proprietor of a common show, if it were material, would be sufficient to admit evidence that he was engaged in or carrying on the business of a common show, within the scope of section 306 of the municipal ordinances set forth in the indictment. The materality of the testimony being sufficiently stated by a general allegation to the effect that it was material, it is manifest that the objections made to this indictment below and upon which it is sought to sustain the order may arise upon the trial, but cannot be determined on a demurrer to the indictment. It is manifest, and it is conceded, that if the defendant was connected with the bureau of licenses and if Edwards required a license, the testimony was material. It directly follows from this that the indictment is sufficient, for these facts are not negatived, it not being stated in the indictment that Edwards did not require a license, or that the defendant was not an employee of the city in the bureau of licenses. We do not, however, rest our decision on this narrow ground, for it is evident that even though the defendant was not connected with the bureau of licenses his testimony with respect to the receipt of money from Edwards might be material to show a connecting link to establish corruption or irregular practices on the part of the bureau of licenses in conducting business with those requiring or supposed to require licenses.

It follows, therefore, that the order should be reversed and the demurrer disallowed.

Ietgbaham, P. J., Clabk, Scott and Milleb, JJ., con-, curred.

Order reversed and demurrer disallowed. Settle order on notice. 
      See Notes, Vols. 12-256, 16-491, 17-408.
     