
    JAMES DEMPSEY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.
    
      Perjury in an affidavit made by coroner as to an inquest having been had— when a false oath is not shown to be willfully and corruptly false.
    
    Writ of Error to tbe General Sessions of Richmond county to review tbe conviction of tbe plaintiff in error of perjury.
    Tbe perjury, was alleged to have been committed hi falsely swearing to an affidavit annexed to a bill presented by tbe plaintiff in error to the board of supervisors of Richmond county. Tbe bill was for fees and charges due to tbe plaintiff in error for services rendered in bolding an inquest, -as coroner of the county.
    Tbe General Term, after holding that the return was defective in not containing tbe affidavit, said : “ If it be assumed that tbe
    affidavit which defendant made was tbe one required by. statute, that be rendered tbe services charged for, then tbe judge’s charge, in our view of tbe evidence, was calculated to mislead tbe jury. There was evidence tending simply to prove that tbe inquest out of which tbe charges grew was wholly fictitious. None of tbe jury could be found. Proof was also given tending to show that no jury saw tbe deceased. The accused testified to the summoning of tbe jury, and that they had viewed the body, but that the inquest was signed at another place than the residence of the deceased.
    
      “ Under this state of facts the judge charged the jury that if the services were not rendered the affidavit was false. If false, it was willfully and corruptly false. He then charged the jury that if the coroner’s jury did not view the body it was no inquest. This took away from the trial jury the question of the intent of the accused in making the affidavit. If there was a jury summoned, and if they did not see the body but found an inquisition upon the oath of witnesses as to the cause of death, I do not think an affidavit to a bill for services in holding the inquest necessarily willfully and corruptly false. If the affidavit -was made in good faith, and not with intent to defraud, and under a mistake as to what made a legal inquest, I suppose it would be the duty of the jury to acquit the accused of the charge of willful and corrupt ■perjury.”
    JV. J. Wyeth, for the plaintiff in error. John Oroák, district attorney, for the defendant in error.
   Opinion by

Barnard, P. J.;

Gilbert and Pratt, JJ., concurred.

Conviction reversed and new trial granted, and proceedings remitted to Court of Sessions.  