
    The People, Resp’ts, v. William B. Hayes, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Perjury—Materiality of affidavit—Consideration of promissory note.
    A note given to a woman with whom defendant had had illicit relations, and who had a child by him, either to induce her to surrender the child, or to settle a threatened action for breach of promise, and as to which no-intimation is made that it was given for the purpose of continuing such relations, cannot be claimed to be given for an immoral purpose, and, therefore, unenforcible, and defendant’s affidavit denying the giving thereof cannot be held to relate to an immaterial fact.
    2. Same—Affidavit—Proof of making.
    The fact that defendant swore to the affidavit may be proved by the testimony of the notary ; it is only the falsity of the statement sworn to which must be substantiated by the oath of two witnesses, or of one witness supported by corroborating circumstances.
    3. Same—Jurisdiction—Pendency of civil action.
    The pendency of the civil action in which the alleged perjury was committed does not deprive the court of jurisdiction to try the indictment; but the question of postponement rests in the discretion of the court. If the defendant wishes to await, the termination of the civil action he should make proper application therefor before entering upon the trial.
    4. Same—Ex post facto law—Laws 1892, chap. 662.
    Chapter 662, Laws 1892, amending §106 of the Penal Code, is not ear post facto as to perjury committed prior to its enactment, as it prescribes-no other or different penalty, but reduces its extent.
    5. Criminal law—Direction' to prosecute witness.
    A witness for defendant admitted on cross-examination that he had made a false certificate as a notary public, and at the close of his testimony the court directed his committal for such offense. Held, that such direction did not improperly prejudice the defendant and afforded no ground for a new trial.
    6. Forgery—False certificate of notary.
    The statute does not require an intent to defraud to constitute the crime of forgery .in making a false certificate with regard to an acknowledgment ; all that is required is that the officer should wilfully certify falsely.
    7. Evidence—Privileged communications—Husband and wife.
    Letters written by defendant’s wife to him, and by him given to a third person, are admissible against him. He is precluded by his own act from claiming that they are privileged as confidential communications between husband and wife.
    Appeal from judgment of the court of general sessions, entered upon the .verdict of a jury convicting defendant of the crime of perjury.
    
      Geo. M. Curtis, for app’lt; De Lancey Nicoll, dist. atty. (Henry B. B. Stapler, asst. dist. atty., of counsel), for resp’ts.
   Barrett, J.

The indictment charged the defendant with perjury in the making of a false affidavit used upon a motion to open a default in a civil action. The action in which the default occurred was in the supreme court, in Monroe county. This action was founded upon a promissory note for $2,000, made by the defendant, and payable to the order of the plaintiff therein, Annie M. Keating. In the affidavit charged to be false, the defendant stated that he never gave Annie M. Keating a note, or ever had occasion to give her one; that he had never seen the note for $2,000, upon which her action was based, and knew nothing whatever about it; that at the time when the note was dated, to wit, October 27, 1887, he was in Florida, the note purporting to have been made in Hew York; and that he went to Florida the 1st of September, 1887, and did not return until the 1st of May, 1888. Upon this affidavit a. motion was made to open the default, which motion was granted, and the defendant was permitted to answer. Evidence was given upon the trial tending to show that the affidavit, in the particulars specified in the indictment, was false; that in truth the defendant had given the note in question to Annie M. Keating,; that he so-gave it to her in Hew York upon the 27th of October, 1887; and that he was in Hew York, and not in Florida, upon that date. The defendant offered evidence tending to sustain his affidavit, but this evidence was weak, contradictory, and hopelessly improbable. Upon full consideration of all the evidence, we think the falsity of the affidavit was overwhelmingly established, and the verdict, of the jury thoroughly justified.

Humerous questions of law are presented by the appellant, but they are, for the most part, frivolous. We do not propose to notice in detail the enormous mass of pointless exceptions which were taken to rulings upon evidence during this lengthy trial. The exceptions were, in the main, without merit, and in no instance was the defendant prejudiced by the rulings of the learned court. There are some questions, however, which should be considered;

1. It is claimed that perjury could not be predicated of the defendant’s denial that he ever gave Miss Keating the note in question, for the reason that the fact was immaterial, in that the note was void, as founded upon an immoral consideration. We need not consider the question of materiality, in view of the entire absence of evidence to sustain the premise. There was not a particle of evidence that the note was given to secure the continuance of illicit intercourse. Miss Keating testified that in the year 1884 the defendant asked her to marry him, and gave her an engagement ring. She had no knowledge at this time that he was a married man. Thereafter, and while she was still in ignorance of his marital status, illicit relations commenced between them, which continued for some years, and resulted in the birth of a boy child on the 11th of April, 1887. Before the birth of this child Mrs. Hayes learned of her husband’s infidelity, and she had in fact become acquainted with the whole situation. Being herself childless, she desired to obtain possession of the boy. She says that the consideration of the note was Miss Keating’s promise to let her have the child, and that upon the latter’s refusal the note was-returned. Miss Keating, on the other hand, says that the consideration was the settlement of a suit which she had threatened to bring against the defendant. Heither of these witnesses intimates that there was an immoral consideration. The effect of Mrs. Hayes’ testimony is, in substance, that the note was not really delivered. That of Miss Keating suggests a release of her right of action for breach of promise. The appellant contends that Miss Keating’s threat to consult a lawyer and commence a suit against him was an act of blackmail, but this contention ignores, first, the original promise of marriage; and, second, the fact that she was the mother of his child. The woman was not an adventuress, seeking by falsehood and baseless threats to extort money from an innocent man. It was proper, under the circumstances, that he should provide for her. The law condemns contracts in furtherance of immorality, but not those made in expiation of wrongdoing. This general principle is well settled.

Thus it was held in Bunn v. Winthrop, 1 Johns. Ch., 329, that past seduction is a valid consideration for a covenant for pecuniary reparation and support of the offspring. In Todd v. Weber, 95 N. Y., 190, it was held that there was nothing illegal in an undertaking by a putative father to pay a sum of money to another in consideration of the support of his illegitimate child, though that other was the mother of the child. The same rule was laid down in Jennings v. Brown, 9 Mees. & W., 496. In Jackson v. Finney, 33 Ga., 513, a note given by the father of an illegitimate child, for its support, was held to be good, as being a meritorious consideration. So, also, as to a note given by a seducer to the parent of the girl seduced. Cutter v. Collins, 12 Cush., 233; Harter v. Johnson, 16 Ind., 271; Merritt v. Flemming, 42 Ala., 234. In England, agreements in consideration of past cohabitation are enforced, Gray v. Mathias, 5 Ves., 286; Gibson v. Dickie, 3 M. & S., 463, though the cases are not uniform as to the necessity for a seal. Beaumont v. Reeve, 8 Q. B., 483; Benyon v. Nettlefold, 3 Macn. & G., 94, 109; Knye v. Moore, 1 Sim. & S., 64; Walker v. Perkins, 3 Burr., 1568; Smyth v. Griffin, 13 Sim., 245; Simpson v. Howdon, 3 Mylne & C., 97, 102; Ayerst v. Jenkins, L. R., 16 Eq., 275, 283; Batty v. Chester, 5 Beav., 103, 109. Even where the illicit connection is resumed, and is never broken off, the court will not presume from that fact alone that the real consideration was future as well as past, nor therefore treat the deed as invalid. Gray v. Mathias, supra ; Hall v. Palmer, 3 Hare, 532; Vallance v. Blagden, L. R., 26 Ch. Div., 353. The ground upon which the declaration was held to be good in Gibson v. Dickie, supra, was that the agreement “was a voluntary compensation, by way of maintenance, made to the plaintiff for the injury done her by their past illicit connection, and that, so far from it being an inducement for her to continue the cohabitation, it was rather an inducement to separate.” The point that the note, if given, was not enforceable, is, therefore, not well taken.

2. The next contention is that the testimony of the notary, Townsend, was insufficient to prove that the defendant actually swore to the affidavit before him. It is true that this witness made contradictory statements upon the subject, but these contradictions were satisfactorily explained. A careful perusal of his entire testimony convinces us that he was truthful, and that the defendant did, in fact, personally appear before him and swear to the affidavit. This, at all events, was a proper question for the jury, and it was fairly presented to them by the learned court. JSTor was it necessary that the notary should be corroborated. The testimony of a single witness is sufficient to prove that the defendant swore as alleged in the indictment. See cases cited in 13 Amer. & Eng. Enc. Law, 354, note 1. It is outy the falsity of the statement sworn to which must be substantiated by the oath of two witnesses, or of one witness supported by corroborating and independent circumstances equivalent in weight to the testimony of a single witness. Id., 333.

3. There was ample corroboration of Miss Keating within the rule just stated. She was corroborated not only by the documents generally, but by a special feature of the note itself. The body of this note was concededly in the handwriting of Mrs. Hayes, but she omitted to write the word “ date ” in the appropriate place. Miss Keating testified that this word was written by the defendant himself on the occasion when the note was delivered to her. In this she was corroborated by the testimony -of two experts in handwriting, who testified that in their opinion, based upon considerations which were detailed, the word “ date ” was written by the same person who wrote the signature to the instrument; and the signature, “W. B. Hayes," was admittedly in the handwriting of the defendant. Three other witnesses also corroborated Miss Keating as to the defendant’s presence in the city of Hew York at or about the time when she says he gave her the note. One, a physician who attended him for an injury to his foot; another, a person who resided in the same house with him, and who identified him both personally and with regard to the injured foot; the third, a servant in the defendant’s family. This testimony not only corroborated Miss Keating upon the affirmative case, but negatived the w'eak and unsatisfactory testimony with which the defendant attempted to establish an alibi.

4. The point is made that the court of general sessions had no jurisdiction to try the indictment, for the reason that the civil action is still pending and undetermined. There is nothing in this point. The court certainly had jurisdiction to try the indictment, even if it would have been better to defer such trial until after the conclusion of the civil action. It was not a question of jurisdiction, but of propriety. Moreover, this question was not properly raised below. The defendant did not ask to defer the trial. He proceeded without objection, and without even informing the court of the continued pendency of the civil action. And, further, he neither moved to dismiss the indictment upon this ground, nor for an acquittal when the prosecution rested, nor in arrest of judgment, nor for a new trial. The only reference we find to this point in the record is its occasional presentation, seemingly in a most inconsequential way, as an objection to the admission of competent evidence, and a request, at the conclusion of the learned judge’s charge, that he further instruct the jury that they must acquit because, under the law, “ the court, in such a case, has no jurisdiction." The practice in England is to postpone the trial for perjury until the cause out of which it arises is determined. Whart. Crim. Law, 762; Rex v. Simmons, 8 Car. & P., 50. In Pennsylvania the rule seems to be that a prosecution, for perjury alleged to have been committed in an affidavit of defense will not be entertained until after final j udgment in the case in which the affidavit is made. Com. v. Dickinson, 3 Pa. L. J. 163. In the case cited, however, the affidavit of defense was in the nature of a direct answer in the action. It was not, as here, an affidavit used collaterally upon a motion in the cause, a motion, too, which has been finally disposed of. There, too, the question was brought directly before the court on an application, upon habeas corpus, to discharge the defendant. All this was before indictment, and while the defendadt was subject only to an alderman's preliminary warrant. And although the defendant was released from the custody of his bail, and discharged, there is not a suggestion that, an indictment, if the prosecution had proceeded thus far, would have been quashed. On the contrary the court referred to the English rule with approval, and declared that the practice in Pennsylvania was not to suffer an indictment for perjury to be tried until the proceeding in which it was alleged the offense had been committed had been determined. We think the English ruléis a reasonable^bne, and that the question of postponement should be left to the sound discretion of the court. The indictment was-here good. It could not have been successfully demurred to. And the question of the defendant's guilt or innocence, upon the trial, to which he submitted without objection, was not affected by the incident of the pendency of the civil action. That is a complete-answer to the only point which, on this head, is now presented, or which was presented below. If the defendant desired to await, the termination of the civil action, he should have made a proper application to that effect before entering upon the trial of the indictment.

5. The perjury was committed prior to the passage of chapter-662, of the Laws of 1892, amending § 106 of the Penal Code. This amendment changed the penalty previously prescribed for this offense by abolishing the minimum limitation. Prior to the amendfnent the penalty read as follows : “ By imprisonment for not less than two nor more than ten years.” Now it reads : “By imprisonment for a term not exceeding ten )rears." It is contended that this amendment, as applicable to perjury committed prior to its enactment, was ex post facto. An ex post facto law was defined by Chief Justice Marshall to be one which rendered an act punishable in a manner in which it was not punishable when it was committed. Fletcher v. Peck, 6 Cranch, 87-133. If, however, the punishment be increased, though the manner of punishment be the same, the law is ex post facto. Shepherd v. People, 25 N. Y, 415. A law which retains the manner of punishment,, but simply reduces its extent, is not ex post facto as to offense» committed before its passage. Com. v. Wyman, 12 Cush., 237 ; State v. Arlin, 39 N. H., 179, 180. This doctrine has been repeatedly asserted in this state. In Shepherd v. People, supra,. Sutherland, J., said that: A law, the effect of which is simply to reduce or diminish the punishment with which an act was punishable when committed, cannot be an ex post facto law, because it inflicts no new or additional punishment.”

So in Hartung v. People, 22 N. Y., 105, Denio, J., observed that, in his opinion : “It would be perfectly competent for the legislature, by a general law, to remit any separable portion of the prescribed penalty. For instance, if the punishment were fine and imprisonment, a law which should dispense with either the fine or the imprisonment might, I think, be lawfully applied to existing offenses; and so, in my opinion, the term of imprisonment might be reduced, or the number of stripes diminished, in cases punishable in that manner. Anything which, if applied to an individual sentence, would fairly fall within the idea of a remission of a part of the sentence, would not be liable to objection.”

And again, on a subsequent appeal in the same case, the same learned judge stated that the act previously under consideration, “ Was considered to be ex post facto because it attempted to change the punishment which the law attached to the offense of the prisoner when it was committed, not by omitting some divisible portion of it, but by altering its kind and character.”

This doctrine applies with equal force to an act which simply vests in the courts authority to impose a less penalty than even the existing minimum. What was said in Dolan v. Thomas, 12 Allen, 421, is entirely applicable to the act under consideration :

“ The effect of the statute was merely to vest in the courts a discretion, by the exercise of which they were authorized to mitigate the sentence to which an offender was liable by dispensing with a portion of the prescribed punishment. The extent of the repeal of previous statutes is then only this: That in a certain class of cases, instead of a fixed and inflexible rule of punishment, which could not be modified or varied, the court has authority to substitute a milder sentence. Clearly, such a statute is not a violation of any right or privilege of any accused party, nor does it render the class of offenses to which it relates, and which were committed prior to its enactment, dispunishabla It does tiot inflict any greater punishment than was before prescribed. It is not therefore ex post facto. It only authorizes a mitigation of a penalty. It is therefore an act of clemency, which violates no right, but grants a privilege to a convicted party.”

6. A witness for the defense, Hoah, admitted upon cross-examination that he made a false certificate as a notary public, to the effect that Mrs. Hayes had appeared before him and acknowledged the execution of an instrument purporting to have been executed by her. As matter of fact, Mrs. Hayes had not appeared before him, nor acknowledged the execution of the instrument. At the close of his testimony the learned judge directed his committal for the offense thus admitted. The appellant claims that by this action of the court he was prejudiced before the jury. It was not the action of the court which affected the credibility of the witness, but his own confession, in the presence of the jury, that he had committed a peculiarly dangerous crime. If such conduct as the witness acknowledged were to pass without instant condemnation, it would have a most pernicious effect. Titles to real estate, the genuineness of conveyances, the security of mortgages, all depend upon the strict fidelity with which public officers intrusted by law with the duty of taking acknowledgments perform their functions. No judge, with a proper sense of what he owes to the-public, should sit supinely by, and permit such a confession to be made as though it were a matter of no moment, or of every-day occurrence. There was, under the circumstances, but one proper course to pursue, and that was to indicate the exceptionable character of the offense by directing its immediate prosecution. That was better than mere words of rebuke; still better than to permit the-guilty officer to leave the court room unchecked and unrebuked. The latter course would have been unworthy of the occasion, and would have evinced reprehensible indifference to a matter of great public concern. It is contended that what Noah confessed did not amount to a crime, because he had no intent to defraud. But the statute does not require an intent to defraud to constitute the crime of forgery in making a false certificate with regard to an acknowledgment. Ordinarily, this intent is required to constitute forgery, 'but, in the case of officer’s authorized to take the proof of acknowledgment of an instrument which by law may be recorded, all that is required is that he should wilfully certify falsely. Penal Code, §510. The committal of this witness was whatthe jury must have expected as the fitting sequence to his confession of crime, and it could have had no other effect upon them than a wholesome one. The injury to the defendant, if any, was in the-fact confessed, not in the treatment which the confession necessitated.

7. The order opening the default was dated at a special term held on the 29th day of April, 1889. The year “ 1889 ” was a clerical error. It should have read “ 1891.” The point is made that the entire record should have been stricken out because of this error. But, clearly, the order in question was that which was-actually made on the decision of the motion. It was brought, from the files with the affidavit and notice of motion. The real fact is apparent. But the order was not essential to the prosecution. The affidavit which was used on the motion was produced from the files, and that was the essential thing. The perjury would have been the same if the decision had been the other way, or if there had been no decision. The affidavit was used to affect the decision, and that was sufficient.

8. Certain letters written by Mrs. Hayes to the defendant were offered in evidence by the prosecution on the cross-examination of Mrs. Hayes. They were objected to by the defendant on the ground that they were privileged communications. These letters were not produced by Mrs. Hayes as evidence against her husband. They were given by the defendant to bis mistress before the trial, and were placed by her in the hands of the district attorney. They thus came into the possession of a third party by the defendant’s shameless disregard of marital confidence. He opened the door, and exposed the expression of this confidence. He cannot now close the door. It is said by Wharton, Orim. Ev., § 898,. that the privilege “ is personal to the parties. A third person who happened to overhear a confidential conversation between husband and wife may be examined as to such conversation. A letter, also, written confidentially by husband to wife is admissible against the husband when brought into court by a third party.” See, also, State v. Hoyt, 47 Conn., 518, and State v. Buffington, 20 Kan., 599.

We have thus endeavored to cover the principal points made by the appellant in the elaborate brief of 115 pages which was submitted to us. There are in this brief many other points, but they are trivial, and we do not deem them worthy of special consideration. The charge of the learned judge was eminently fair, and the exceptions thereto are without merit. Upon the whole, we think the defendant had a fair trial, that he was justly convicted, and that no errors were committed to his prejudice.

The judgment should, therefore, be affirmed.

Yah Brunt, P. J., and Follett, J. concur.  