
    The People of the State of New York, Respondent, v. Margaret Teal, Appellant.
    First Department,
    June 18, 1909.
    Crime — attempt to commit subornation of perjury—materiality of false testimony.
    One who promises to pay money as a consideration for false testimony to be given by another in an action for divorce and who induces the proposed witness to make a false affidavit stating that the defendant in the divorce action committed adultery with a certain person, is guilty of the crime of an attempt to commit the crime of subornation of perjury, even though the particular adultery was not alleged in the complaint in the divorce action.
    The crime aforesaid does not depend upon whether the party or witness malting the deposition or giving the testimony knows it to be material, or whether he be competent to give it, neither is it essential that the evidence should be admissible under the issues framed.
    One may be convicted of the crime of an attempt to commit the crime of subornation of per j ury even though the crime of per j ury or subornation of per j ury was not committed.
    Appeal by the defendant, Margaret Teal, from a judgment of the Court of General Sessions, of the Peace in and for the county of Mew York, rendered on the 26th day of February, 1909, convicting the defendant of the crime of attempted subornation of perjury.
    
      Robert J. Haire, for the appellant.
    
      Robert C. Taylor, for the respondent.
   Laughlin, J.:

The trial and conviction were on an indictment for “the crime of an attempt to commit the crime of subornation of perjury.” Subornation of perjury is defined in section 105 .of the Penal Code as follows: “ A person who willfully procures or induces another to commit perjury, is guilty of subornation of perjury.” Section 34 of the Penal Code defines an attempt to commit a crime as follows: “ An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime,” and section 686 of the Penal Code provides that “A person who "unsuccessfully attempts to commit a crime is indictable and punishable, unless otherwise specially prescribed by statute,” as therein provided, which is, in substance, where the crime attempted to be committed is punishable by imprisonment for a period less than life, as is the crime of subornation of perjury (Penal Code, § 106), by imprisonment for not more than half the longest term or by a fine of not more than half the largest sum which might be imposed on a conviction of the crime- which the defendant is charged with having attempted to commit. The crime of perjury, is defined in section -96 of the Penal Code as follows : A person who swears or affirms that he will truly testify, declare, depose or certify, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed, is true, in ah action, or a special proceeding, or upon any hearing, or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the .ends of public justice, or. may lawfully be administered, and who in sucli action or proceeding, or on such hearing, inquiry or other occasion, willfully and knowingly testifies, declares, deposes, or certifies falsely, in any material matter, or states, in his testimony, declaration* deposition, affidavit or certificate, any material' matter to be true which he knows to be false, is guilty of perjury.”

Section 97 of the Penal Code provides that irregularity in the administration of an oath is no defense to a prosecution for perjury, and section 98 provides that it is no defense to such a prosecution that the witness was incompetent to give the testimony or to make the deposition or certificate. Section 99 provides that it is no defense to the, prosecution for perjury that the defendant. did not .know the materiality of the false statement or that it did not in fact affect the proceeding in or for which it was made; and that it is sufficient that it was material and might have affected such proceeding. Section 100 of the Penal Code provides that the making of the deposition or certificate is deemed to be complete from the time when it is delivered by the defendant to any other person, with intent, that it be uttered or published as true.

It is charged in the indictment that the defendant committed thé crime on the 20th day.of July, 1908, by willfully and feloniously soliciting and instigating and attempting and endeavoring to suborn, procure and induce one Mabel MacOauslan to appear upon a hearing thereafter to be liad before a referee to take proof of the facts charged in the complaint in an action brought by one Helen K. Gould against her husband, Frank J. Gould, for a divorce as a witness for the plaintiff in said action, and upon said hearing to commit perjury and give false testimony of matters material and relevant to said action and to the issues therein and in support of the, material facts charged in the complaint therein. The facts which the defendant is charged with having attempted to induce said Mabel MacOauslan to testify to on the trial of the issues in said action are stated in the indictment as follows : “ That she, the said Mabel MacOauslan, had at some time in the month of March, 1908, seen the said Frank J. Gould, when only partly dressed, come out of the bedroom of a woman known as Bessie Van Doren, or Bessie De'Voe, in a certain apartment, in an apartment house called the Glénmore,” in the county of Hew York. The People introduced convincing evidence that the defendant did willfully and feloniously attempt to induce the person named in the indictment to testify falsely, as charged in the indictment, well knowing that said Mabel MacOauslan was not even acquainted with the defendant Gould, or the alleged corespondent, and never saw them together at the place in question or elsewhere. It further appears that the defendant was to receive a money consideration for procuring the testimony, and offered to bribe the said Mabel MacOauslan to give the testimony, and persisted in her corrupt efforts to the extent of inducing the said Mabel MacOauslan to make an affidavit, entitled in the divorce action with respect to the things which the defendant sought to induce her to testify to, as charged in the indictment.

The only point presented by the appeal which requires consideration is the claim that the materiality of the testimony was not shown. It appears that an action was duly begun in the Supreme Court of this State by Helen K. Gould against her husband for a divorce upon the ground of adultery, by the service of a summons upon him on the 24th of June, 1908. The answer in the action was served on the twenty-seventh day of July thereafter, and in the meantime the complaint was served on the attorney for the defendant in the action, but on what day, whether before or after the twentieth day of July,-that being the day on which the crime is charged, does not appear. When the complaint, was served, whether before or after the twentieth day of July, the only infidelity with .which the plaintiff in the divorce action charged her husband was an act of adultery alleged to have been committed at-Uorth Sydney, Cape Breton, Dominion of Canada, on the 25tli day of July, 1905.- Upon this fact counsel for the appellant contends that the evidence which the defendant sought to procure to be given was not and could not be material to the issues in, the divorce action,' and that, therefore, the crime of an attempt to suborn perjury was not established. It is manifest that if-this contention should be sustained, the object of the Legislature in making subornation of perjury, and, an attempt to induce the same, crimes, would be rendered abortive, for it would only be necessary to negotiate for the giving of the false ■testimony before the issues in the action are framed. It is important in determining this appeal to bear in mind the command of the • Legislature with respect to .the construction to be given to the provisions of the Penal Code. It is provided in section 11 of the Penal Code as follows: The rule that a penal statute is to be strictly construed does not apply to this Code or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.”

It needs no further argument to show that th <s promotion of justice and carrying into effect the objects of the law require that a construction should be given to these statutes which will bring the acts done by the defendant within the palé of -the law, and it only remains. to be seen whether that may be done without departing from the fair import ” of the terms of these sections of the Penal Code. It will be observed that section 96, in defining perjury, does not provide in' express terms that the deposition or testimony must be material to the issues' as framed in an action or proceed-' ing. , It is sufficient that the deposition or testimony be knowingly false and that it relates to' any material matter.” It is significant also that the crime does not depend upon whether the party or witness making the deposition or giving the testimony knows it to be material, or whether he be- competent'to give- it, and it has been held that it is not essential that the evidence should be admissible under the issues as framed. (Reg. v. Philpotts, 5 Cox C. C. 363; Reg. v. Gibbons, 9 id. 105; Chamberlain v. People, 23 N. Y. 88; Stale v. Keenan, 8 Rich. [S. C.] L. 456.) It was held in People v. Courtney (94 R. Y. 490) that it is not essential that the testimony should even relate to the issue as framed; that it is sufficient if it becomes material evidence upon the trial of the issue. In that case perjury was predicated upon impeaching testimony which had no direct bearing upon the issues. The Court of Appeals has recently placed a broad construction upon the provisions of section 96 of the Penal Code, in holding that perjury could be predicated upon the making of a false affidavit here, not required by the laws of this State, but for use in Delaware pursuant to a statute of that State. (People v. Martin, 175 N. Y. 315, 322.) The acts of the defendant in the case at bar are quite as reprehensible as if issue had been joined in the divorce action and the charge of adultery made against the defendant therein was alleged to have been committed at the time and place which the defendant sought to induce Mabel MacCauslan to give testimony concerning the'presence of the defendant in an apartment in the Glen more apartment house. Her acts, from every standpoint, are fairly within the spirit of the statute, and it is inconceivable that the Legislature would have limited the crime of an attempt to commit' the crime of subornation of perjury to acts done after issue is formally joined in an action and to acts and facts only which would be relevant and admissible under the issues as framed at the. precise time of the commission of the acts. Our statute (Code Civ. Proc. § 1756 et seg.) authorizes an action for divorce on the ground of adultery, and that was the object of the divorce action in question. This evidence was, in a broad sense, material to that action. The issue in the action, when framed, would be one relating tó the commission of adultery by the defendant therein. Under our forms of pleading, the plaintiff is required to specify the time and place of the commission of the act of adultery, and she might • fail in her suit if she should be unable to establish the charge as made, even though her action might have been maintained upon other facts; but that depends upon questions of practice and procedure. The plaintiff in the divorce action might have obtained an amendment of her complaint, if served; and if not served, might have charged the offense at the Glen more apartment house. It cannot be that the • crime depends upon the condition of the pleadings at a future date, nor does it, in my opinion, depend upon the condition of the pleadings at all. It may,' I think, be committed before any complaint is served. At the time these things were done it is evident that those who participated in the acts expected that the evidence was to be used upon the trial of the divorce action, and they accepted compensation, the one for procuring it and the other for giving it. The law authorized the bringing of an action for divorce in which such facts would be material. It is of no consequence that the crime of perjury or subornation of • perjury was not committed, or as- to whether or not it could have .been committed. It has been held that the crime of attempting to commit larceny by stealing from the pocket of a person may be committed, even though there be in fact no property in the pocket which is the object of the attack. (People v. Moran, 123 N. Y. 254.) It has also been held that the crime of attempting to .commit the crime of abortion may be committed upon a woman who is not pregnant. (People v. Conrad, 102 App. Div. 566; affd., 182 N. Y. 529.)

I am, therefore, of opinion that the conviction should be affirmed.

Ingraham, Houghton and Scott, JJ., concurred; McLaughlin, J., concurred in result.

Judgment affirmed..  