
    The People of the State of New York, Respondent, v. John A. Williams, Appellant.
    Perjury — Indictment — False Affidavit — Delivery. An indictment for perjury, under section 96 of the Penal Code, which charges the making of a false affidavit upon a material matter in an action or special proceeding, need not allege the-delivery of the affidavit by the defendant to another person with intent that it be uttered or published as true, required by section 100 of the Penal Code to complete the making of the affidavit; but proof of such a delivery must be given upon the trial in order to sustain the charge of making.
    
      People v. Williams, 92 Hun, 354, affirmed.
    (Argued March 5, 1896;
    decided April 7, 1896.)
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made December 26, 1895, which affirmed a judgment of the Court of Sessions of Otsego county convicting the defendant of the crime of perjury.
    In the indictment it was, in effect, alleged that the defendant willfully, knowingly and corruptly made oath before an officer authorized to administer the same that a certain affidavit by him subscribed was true, and that the affidavit was made and entitled in a certain action in the Supreme Court; the statements contained in the affidavit were then set forth, and it was alleged that they were false; it was also alleged that a motion was noticed in the action ; that upon the hearing of such motion the affidavit made by the defendant was used, and that the false statements contained in it were material to the determination of the motion.
    Upon the trial, before any testimony was given, the defendant moved that the indictment be quashed and set aside upon the grounds that the indictment was insufficient and defective; that it did not state an offense or crime; that it did not state the crime of perjury, and that it was not sufficient in substance or form. The defendant also moved that the indictment be dismissed and quashed upon the specific ground that it contained no allegation that the defendant ever delivered the affidavit to any person with the intention that it should be uttered or published as true, and that it contained no allegation that the affidavit specified in the indictment was made by the defendant with any intention or for the purpose of having it delivered to any person or with the intention that it should be used in any proceeding. The motion was denied by the court and the trial proceeded.
    Evidence was given upon the trial which tended to show that the affidavit had been delivered by the defendant to another person with an intention that it-should be uttered' or published as true.
    
      George A. Fisher for appellant.
    The indictment - in this case is fatally defective, as it contains no allegation that the defendant ever gave or delivered the affidavit to any person with intent that it should be uttered or published as true. (People v. Dumar, 106 N. Y. 502; Ortner v. People, 4 Hun, 323; People v. Stark, 136 N. Y. 538 ; People v. Lowndes, 130 N. Y. 455; People v. Albow, 140 N. Y. 130; McGary v. People, 45 N. Y. 153; People v. Burns, 53 Hun, 274; Wood v. People, 53 N. Y. 511; United States v. Hess, 124 U. S. 483; Suth. on Stat. Const. 285.) The People offered in evidence the affidavit in question, and it was received without first showing that it had been delivered to any other person with the intention that it should be uttered or published as true. This was error. (Code Crim. Pro. § 392; U. S. v. Hess, 124 U. S. 483; People v. Albow, 140 N. Y. 130 ; 1 Greenl. on Ev. [7th ed.] § 51; Southwick v. F. Nat. Bank, 84 N. Y. 420 ; Abb. Tr. Brief, 450; Reed v. McConnell, 133 N. Y. 434.)
    
      Frank L. Smith for respondent.
    The indictment is sufficient. (Code Crim. Pro. § 331; People v. Meakim, 133 N. Y. 214; People v. Buddensieck, 103 N. Y. 487; Phelps v. People, 72 N. Y. 334; People v. King, 110 N. Y. 418; People v. Weldon, 111 N. Y. 569; People v. Kelly, 3 N. Y. Cr. Rep. 272; People v. Rockhill, 74 Hun, 241; People v. Flaherty, 79 Hun, 48; Eckhardt v. People, 83 N. Y. 462; Tully v. People, 67 N. Y. 15.) There was no error in the rulings of the court. (Code Crim. Pro. § 331.) The affidavit on which the allegation of perjury was founded was properly received in evidence. (People v. Hayes, 70 Hun, 111.)
   Andrews, Ch. J.

Section 100 of the Penal Code, which is embraced in the chapter relating to the crimes of perjury and subornation of perjury, declares that “ the making of a deposition or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the defendant to any other person with intent that it be uttered or published as true.” Section 96, which defines the crime of perjury, includes among the acts constituting perjury a false affidavit in an action or special proceeding. The indictment charges that the affidavit counted on Avas “ made and is entitled in an action or special proceeding.” In the absence of any statute regulating the matter it has been held that the crime of perjury in swearing to an affidaAdt, was complete when the oath was taken by the affiant in a judicial proceeding or coui’se of justice, although the affidavit was never delivered or used, provided the matter sworn to was false and known to the affiant to be so, and was material. (Rex v. Hailey, 1 C. & P. 258 ; King v. Crossley, 7 T. R. 315.) Section 100 of the,Penal Code is a statutory rule defining what shall be sufficient to constitute a mating of an affidavit so as to bring it within the operation of the 96th section.

By force of section 100 an indictment charging the mating of a false affidavit will not be supported unless it appears. on the trial that something more had been done than the mere taking of the oath by the affiant. He must in addition have delivered the affidavit with the intent stated. Until that has been done he has made no affidavit within the meaning of the statute of perjury. But it is sufficient we think that the indictment charges that the defendant made ” the affidavit. This allegation comprehends every act which enters into the statutory definition of a making. If it turns out on the trial that the affidavit, although sworn to by the defendant, was not delivered by him, the indictment will fail from lack of proof.to sustain the allegation of making. On the other hand, if it is shown that the defendant did deliver it with intent to utter .it as true, the allegation that he made the affidavit is, supported. The crime consists in the making of a false affidavit upon a material matter in an action or special proceeding. The making must be averred and the fact of delivery must be proved to sustain the averment, because by section 100 there must be a delivery with the intent stated, before there is a complete making. The defendant was fully apprised by the indictment of the charge made against him and of the transaction upon which it was founded. We think the indictment sufficiently set forth the crime of which the defendant was convicted. It charges both the crime and the act constituting the crime.

The other questions in the case are fully considered in the opinion at General Term and we concur in the conclusions reached.

The judgment should be affirmed.

All concur, except Martin, J., not sitting.

Judgment affirmed.  