
    The People of the State of New York, Respondent, v. Willard H. Peck, Appellant.
    Fourth Department,
    July 11, 1911.
    Crime — perjury — materiality of- statements — indictment — demurrer.
    Willfully and knowingly testifying falsely to an immaterial fact is not ■perjury. .
    It' is unnecessary that an indictment for perjury charge that any or all of the sworn statements of the defendant were material or were of and concerning a matter material in a proceeding then being legally conducted, provided the facts set forth are sufficient in themselves to show that the alleged false statements were material.
    Such materiality, however, must be shown in the indictment itself, either by direct statement or by the facts therein set forth.
    An indictment for perjury is demurrable when it alleges that in .the course of the examination of an insurance company by the Superintendent of Insurance the defendant, an officer of the company, was called as a wit-. ness, that the only material question upon his examination was whether a certain contract was valid and subsisting, .and that he falsely, feloniously, willfully and knowingly testified that he “ thought ” the contract was a liability Of the corporation and that he “believed” it was binding and that he “ considered ” that the company owed him money thereon, each of which statements was untrue. ' .
    The existence of the contract being alleged in the indictment, its validity and effect were questions of law, and the defendant’s opinion thereon could not have been material.
    Even though, conceding the validity of the contract, the indictment be-construed to allege the materiality of the inquiry as to whether defendant had been paid and had received all he was entitled to under it, a judgment of conviction cannot be sustained on such theory where it appeared by the uncontradicted evidence on the trial that the defendant had been paid nothing on the contract and that, if it were valid, the corporation still owed the amount it had thereby agreed to pay. Defendant’s motion for the direction of a verdict of acquittal should have been granted. '
    McLBrnsrAir, P. J., dissented in part.
    Appeal by the defendant, Willard H. Reck, from a, judgment of the Supreme Court rendered against him on the 25th day of July, 1910, convicting him of the crime of perjury; also from an order bearing date the 4th day of March, 1910, and entered in the office of the clerk of the county of Onondaga overruling the defendant’s demurrers to the indictment, and also from an order entered in said clerk’s office on the 25th day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      William Nottingham, and Ceylon H. Lewis, for the appellant.
    
      George Hopkins Bond, District Attorney, and George W. Standen, for the respondent.
   Robson, J.:

The indictment, upon which defendant’s conviction was had, charges that the perjury assigned was committed during the course of an examination made by an examiner appointed by the Superintendent of Insurance to examine into and report on the affairs of the People’s Mutual Life Insurance Association, an insurance society and corporation duly organized, incorporated and existing under and by virtue of the laws of this State and doing business at the city of Syracuse, which was subject to the supervision of the Insurance Department of this State, of which corporation defendant was at all the times thereinafter mentioned an officer and secretary, and that on the 6th day of January, 1910, in . the course of such examination the defendant was duly sworn before the said examiner to give true evidence touching the matters in question upon such examination, the said examiner then and there having sufficient and competent authority to administer such oath in that behalf. The indictment further charges that upon said examination it became then and there a material question whether a contract which the defendant had with the corporation that it should pay defendant three cents from each quarterly capita tax paid by every member belonging to it and one-half cent from each monthly rate payment on all certificates issued by it was a liability of the corporation, whether said contract was binding upon it, whether such contract was valuable, whether it owed defendant upon such contract, and whether said con- . tract represented a legal claim against it. It is further charged that defendant, being so sworn and upon oath, falsely, feloniously, corruptly, knowingly and willfully testified that iChe thought that said contract was a liability ” of the corporation and that he believed that at all times said contract was binding upon ” it, “ and that he considered said contract valuable,” and that he considered ” the corporation owed him * * * upon said contract/’ and that “he believed that said contract represented a legal claim against ” it. Each of these statements is then separately negatived; and it is further charged that defendant in each instance well knew that the- fact was contrary to the statement so made of what he thought, believed or considered such fact to be.

The question of the sufficiency and legality of the indictment was directly and fully presented by the demurrers interposed thereto.

Willfully and knowingly testifying to an immaterial fact is not perjury.' (People v. Teal, 196 N. Y. 372.) The indictment does not in words charge that any or all of the statements therein alleged to have been made by defendant were material or were of and concerning a matter material in the proceeding then being conducted by the examiner. It is not necessary that the indictment so charge, provided the facts, which are set forth therein, are sufficient in themselves to show 'that the sworn statements alleged to be false were material. But the materiality must be shown in the indictment itself either by direct statement or by the facts stated therein. (Wood v. People, 59 N. Y. 117, 121; People v. Gillette, 126 App. Div. 665, 672; Commonwealth v. Pollard, 53 Mass. 225, 229.) The facts stated in the indictment do not show that the matters upon which defendant made under oath the statements assigned as perjury weye pertinent, or material to' any matter before the examiner for examination. Upon that examination the questions then and there (i. e., when defendant was .sworn and examined as a witness) material were, as stated in the indictment, whether the contract was a liability of the corporation, whether the contract was binding upon the corporation, whether the contract was valuable, whether the corporation owed defendant upon it, and whether it represented a legal claim against the corporation:' The apparent equiva-. lent of all these questions is the single one, was the contract a valid and subsisting one ? • Whatever may in fact have been the object, or scope, of the examination, for the purpose of this action the indictment has limited it to this single material matter. This being so it is apparent that neither its validity nor its- legal effect could be determined as a fact by ascertaining what any one, even an officer of the corporation, “thought,” or . “believed ” or “considered ” upon the subject. In other words, the fact of. the existence of such a contract being alleged in the indictment, its validity and effect were on the face of the indictment itself plainly questions of law, in the determination, of which the defendant’s opinion, or his statements sounding in opinion only, could not be material. It follows that the demurrers to the indictment should have been allowed, and judgment to that effect directed.

It may, however, be suggested that since, as has already been stated, the indictment sets forth, as a material matter on the examination, the question whether the insurance corporation owed defendant on the contract, that allegation unexplained might include the question whether, even conceding the validity of the contract, defendant had been paid and had received everything to which he was entitled under it. I do not think this suggestion is tenable, because the material matter alleged was the legality of the contract itself. But if it be tenable, then it was fully met when it appeared by the uncontradicted evidence on the trial that defendant had been paid-nothing on ■ the contract; and,' if valid, the corporation still owed the amount it had thereby agreed to' pay. This fact having been made to appear, the defendant disposed of all claim that his statement before the examiner might be considered as false for the reason suggested, and his motion made at the close of the evidence that the court direct an acquittal should have been granted. '

The record also contains exceptions to the admission and . rejection of evidence and to the charge of the court, which it is believed present reversible error; but because the present disposition of this appeal necessarily follows from the views above indicated it is unnecessary to refer to them further.

The judgment, the order denying new trial, and the order overruling and denying defendant’s demurrers should be • reversed, the demurrers to the indictment allowed and the indictment dismissed.

All concurred, McLennan, P. J., concurring only as to the reversal of the judgment and the order denying motion for new trial, because of errors- committed upon the trial, being of the opinion that the indictment -alleges a crime and that the. demurrers were properly overruled.

Judgment of conviction, order denying motion for new. trial, and order overruling defendant’s demurrers reversed, demurrers to indictment allowed and indictment dismissed.'  