
    The People of the State of New York, App’lts, v. George Clements, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 18, 1887.)
    
    1. Criminal law—Indictment for perjury—Sufficiency of.
    The defendant was charged with perjury in the verification under oath of a quarterly report made by a certain bank, of which he was cashier, to the banking department of the state. The indictment averred in the first place that the defendant had at the time full and certain knowledge as to the real and true condition of the bank in respect to the matters in question. It then set forth the report, schedule and affidavit verifying the same, and averred that the defendant, when" he swore to the same, knew that the facts were other than as stated in the report and well knew that the statements in the report were false. Hild, that these averments amounted to an allegation that the statements were false.
    3. Same—Demurrer—Imperfection in form of indictment—Code Grim. Pro., §§ 833 and 285.
    Code Criminal Procedure, section 323, enumerates the grounds upon which a demurrer may be interposed, and does not permit a demurrer for imperfection in the form of the allegations. And section 285 provides that no indictment is insufficient by reason of an imperfection in matter of form which does not involve the merits. ■
    
      Appeal from a judgment of the supreme court, general term, third department, reversing a judgment of the oyer and terminer of Washington county entered on the verdict of a jury convicting the defendant of perjury and discharging the prisoner.
    
      Edgar Hall, for app’lts; Luman S. Northup, for resp’t.
    
      
       Modifying 42 Hun, 353.
    
   Rapallo, J.

—The judgment of the general term in this case not only reversed the conviction in the oyer and terminer, but discharged the defendant. 'A new trial was not ordered because the court was of the opinion that the indictment was fatally defective, and that a valid conviction could not be had thereon.

While we concur in the conclusion of the general term for the reasons stated in its opinion, that the record discloses errors committed upon the trial authorizing a reversal of the conviction, we do not agree to the further conclusion that the indictment was so defective that a conviction thereon could not be sustained.

The defendant was charged with perjury in the verification under oath of a quarterly report made by the State Bank of Fort Edward, of which he was cashier, to the banking department of the state, which report purported to contain a true statement of the condition of the bank on the morning of March 22, 1884.

The affidavit of the defendant verifying the report was set forth in the indictment, and stated that the report with the schedule accompanying the same (both of which were set forth in full) was in all respects a true statement of the condition of said bank before the transaction of any business on the 22d day of March, 1884, to the best of the knowledge and belief of the deponent.

The point upon which the general term, in the opinion there delivered, based the conclusion that the indictment was fatally defective, was that the falsity of this affidavit was not sufficiently averred.

The indictment charged that on the 22d and 29th days of March, 1884, the defendant had full and certain knowledge of the real and true condition of the affairs, transactions, assets and liabilities of the said bank and of all the matters and statements contained in said report and schedule accompanying the same as the same actually existed before the transaction of any business on the morning of March 22, 1884. It then set forth the report, schedule and affidavit verifying the same, and averred that the defendant, when he swore to the same, well knew that said report and the accompanying schedules were false and untrue, and then wickedly and corruptly swore that they were true to the best of his knowledge and belief, he then having knowledge and the grounds for belief that said report and schedules were false and untrue.

It then specified several statements contained in the report, in respect to each of which it averred that the defendant well knew at the time he swore to said report that the fact was otherwise than as stated, specifying particularly the difference, and charged that the statement was then well known to him to be not true according to the best of his knowledge and belief.

The defendant interposed a demurrer to the indictment,, which was overruled. He then pleaded not guilty, and after the verdict was rendered made a motion in arrest of judgment, which was denied.

The objection now made to the indictment is that the indictment does not in direct terms aver that the statement's contained in the report, and in respect to which perjury is assigned, were as matter of fact untrue, but only that the defendant well knew them to be untrue, and well knew the facts to be otherwise than is stated in the report.

The district attorney contends that the indictment does in direct terms negative the affidavit, which was that the report was a true statement, etc., “accordingto the best of his knowledge and belief.” - That it avers that his knowledge was directly contrary of what he swore to.

There is much force in this contention. But giving full effect to the objection that it was necessary to negative the facts which the defendant swore to on information and belief, we think that the indictment did in substance contain such a negative.

It averred in the first place that the defendant had at the time full and certain knowledge as to the real and true condition of the bank in respect to the matters in question, and that he well knew that the facts were other than as, stated in the report, and well knew that the statements in the report were false. It logically follows that these averments amounted to an allegation that the statements were ■false. His knowledge as to the matters stated being full and certain, he could not know the statements to be false unless they were so.

Under the common law system of pleading it was a rule that statements must be be certain and positive, and not by way of reasoning or argument which would lead to the fact intended to be averred, and it was a good objection to a pleading that its allegations were argumentative. But this objection was not one of substance, but only of form and could only be taken advantage of by special demurrer. It was not available on general demurrer, or on motion in arrest of judgment. Spencer v. Southwick, 9 Johns., 314; Marie v. Garrison, 83 N. Y., 14, 23.

A pleading is deemed to allege what can by fair and reasonable intendment be implied from the facts stated, and a general demurrerer for insufficiency, was not sustainable on the ground that the facts were argumentatively or otherwise imperfectly or informally stated. The objection to this indictment, if there be any, was that the falsity of the statements sworn to was only argumentatively alleged; but that it was fairly and even necessarily to be implied from, the facts stated is very clear. The objection goes only to the form of the allegation.

The Code of Criminal Procedure enumerates the grounds upon which a demurrer may be interposed (section 323), and does not permit a demurrer for imperfection in the form of the allegations, but on the contrary, section 285 declares, that “no indictment is insufficient^ nor can the trial, judgment or other proceedings thereon be affected by reason of an imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.” Under the indictment in question the prosecution was required, for the purpose of convicting the defendant to prove that he knew the specified statements in the report to be false, and this proof necessarily involved proof that they were false.

Various other objections were made to the sufficiency of the indictment. We have examined them all, but do not deem it necessary to go over them in detail. Our conclusion is that neither of them discloses any substantial defect which warrants the discharge of the defendant.

The judgment of the general term should be modified so as, instead of discharging the , defendant, to award a new trial and as modified, affirmed.

All concur, except Earl, J., not voting.  