
    (76 Misc. Rep. 581.)
    PEOPLE v. WEBBER.
    (Ulster County Court.
    May, 1912.)
    1. Criminal Law (§ 42*)—Privilege of Witness.
    Where a witness, without claiming his privilege against self-Incrimination, testifies before a grand jury in a proceeding not directly against him, perjury may be predicated on such testimony, and his motion to dismiss the indictment on the ground that his constitutional rights were violated will be denied.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 45-48; Dec. Dig. § 42.*]
    2. Perjury (§ 25*)—Indictment—Materiality of False Testimony.
    Where the materiality of false testimony of defendant, charged with perjury, appears both from direct allegation of its materiality and from the facts alleged, a demurrer to the indictment will be overruled.
    [Ed. Note.—For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. § 25.*]
    ►For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    Samuel W. Webber was indicted for perjury. Motion to inspect minutes of grand jury, and motion to dismiss the indictment upon the ground that defendant had gained immunity, denied. Demurrer to indictment overruled.
    William D. Cunningham, Dist. Atty., for the People.
    G. D. B. Hasbrouck (Brinnier & Canfield, of counsel), for defendant.
   CANTINE, J.

For the reasons stated in the case of People vf Elite Distributing Company and Samuel W. Webber, 137 N. Y. Supp. 235, the motion for an inspection of the grand jury minutes is denied.

The defendant claims, in the motion to dismiss the indictment, that his constitutional immunity from testifying against himself was infringed, when he was called before the grand jury, in October, to testify in the case of People v. Kiss and Graubart, and, even conceding his statement before the grand jury to be false, and material to the issue, it could not be the basis of a charge for perjury. These views are based upon the opinion of Justice McLaughlin, concurred in by Justice Ingraham, in People v. Gillette, 126 App. Div. 665, 111 N. Y. Supp. 133. The majority of the court in that case did not concur in those views. In an earlier decision, People ex rel. Hummel v. Davy, 105 App. Div. 598, 94 N. Y. Supp. 1037, will also be found a dissenting opinion of Justice Ingraham expressing the same ideas.

We must eliminate, in considering this subject, all cases in which a person is called as a witness, sworn and claiming his privilege, and an application thereupon to punish him for contempt. The law in that line of cases is well settled. Counselman v. Hitchcock, 142 U. 6. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253, 68 N. E. 353. A second situation must also be eliminated, viz.: A witness is called, a claim of privilege is made and overruled by the magistrate or tribunal, and an answer compelled. In that situation the law is that no use can be made of the answer. The third situation is presented by this motion, viz.: Proceedings pending, but not directly, against the witness, who is subpoenaed, the privilege not claimed, and the crime of perjury predicated upon his answers. Thus eliminated and defined, the proposition falls within the principles laid down in the decisions beginning with Hendrickson v. People, 10 N. Y. 13, 61 Am. Dec. 721, and ending with People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, viz., that the constitutional right must be claimed by the witness at the time the question is asked. It is purely personal, and, if not claimed at the time, it is waived, and the answer becomes voluntary. The answer thus given may thereafter be used against the witness when subsequently charged with the commission of the crime. The testimony so given before a tribunal is to be tested by the same standards as the testimony of any witness.

The motion to dismiss the indictment, is denied.

Third. The demurrer raises the question of the materiality of the testimony. The indictment must show either that the testimony given was material to the issue upon trial, or under investigation, or the facts must be alleged in the indictment showing how the testimony was material. If the former alternative is employed, then no facts showing the materiality need be alleged. If the latter, then no allegation of materiality becomes necessary, as the facts alleged show the materiality. People v. Tillman, 139 App. Div. 572, 124 N. Y. Supp. 44, affirmed 201 N. Y. 598, 95 N. E. 1136; People v. Peck, 146 App. Div. 266, 130 N. Y. Supp. 967.

This indictment under consideration covers both alternatives. The materiality appears from the allegation of materiality and from the facts alleged, viz., that Kiss and Graubart represented themselves to be in the employ of the Elite Distributing Company, and that, being so employed, the certificate was properly in their possession, and that they were authorized to sell the same. The testimony of Webber was to the effect that Kiss and Graubart were discharged, and were not authorized to represent themselves as the agents of the Elite Distributing Company, and had no right to the possession of the certificate. The charge against Kiss and Graubart under consideration included within its limits the obtaining of the property by means of a false token, viz., the certificate, and" also the representations made in connection therewith.

Demurrer overruled.  