
    THE STATE, DEFENDANT IN ERROR, v. FRANK MAGYAR ET AL., PLAINTIFFS IN ERROR.
    Submitted March 17, 1921
    Decided June 21, 1921.
    1. Section 18 of the Crimes act (Pnmph. L. 1898, p. 798) providing that a person convicted of perjury shall thereafter be incapable of giving testimony in any court of this state has been abrogated by the first section of the Evidence act (Oomp. Stat., p. 2217), which enacts that “no person offered as a witness in any action or proceeding- of a civil or criminal nature shall be excluded b,y reason of his having been convicted of crime.”
    2. The fact that a witness, called to testify as to what he said before the grand jury, had been intoxicated when he appeared before that body, does not affect his competency, but only goes to the credit to be given to his testimony, which credit is a matter to be determined by the jury.
    8. If a party, Whose act is under investigation by the grand jury, or a third person, seeks out one who has knowledge of the facts involved, and under a belief that he is likely to be brought before the grand inquest, solicits, instigates and persuades him to falsely testify before the grand jury with relation to the subject-matter of the investigation, and he yields to the solicitation, and does by reason thereof commit perjury, the party at whose instigation he swears falsely is guilty of subornation of perjury.
    On error to the Middlesex County Court of Quarter Sessions.
    
      Before Gummerg, Chief Justice, and Justices Bebgeh and Ivatzenbach.
    For the plaintiff in error, Thomas Brown.
    
    For the state, Joseph E. Strieker, prosecutor of the pleas.
   The opinion of the court was delivered by

Gcmmere, Ci-itef Justice.

The defendants (three in number) were indicted for and convicted of the crime of subornation of perjury. The case of the state was that one of them, Steve Vukscevieh, had been arrested upon a charge of carnal abuse committed upon the body of a, girl named Julia Santo, who was. then under the age of sixteen years; and that thereupon the defendants corruptly solicited and instigated the father of this girl to. falsely testify before the grand jury that the girl was then over eighteen years of age; and that he so testified.

The grounds upon which this court is asked to reverse the conviction will be considered in the order in which they have been argued.

First, it is contended that the court improperly permitted the father of this girl, Steve Santo, to testify as a witness on the part of the state. The argument is that he was incompetent because it had already appeared in the case that he had been convicted of perjury on his own plea, and that, the effect of this conviction was to render him incapable thereafter of giving testimony in any court of this state, this being the provision of section 18 of the Crimes act of 1898. Pamph. L., p. 798. But this provision was. abrogated by the first, section of eur act concerning evidence, as, revised in the year 1900 (Comp. Stat., p. 2217), which enacts that “no, person offered as a witness in any action or proceeding of a civil or criminal nature shall be excluded by reason of his having been convicted of crime, but such conviction may be shown on the cross-examination of the witness, or by the production of the record thereof for the purpose of affecting his credit.” State v. Henson, 66 N. J. L. 601: State v. Wendell, not yet reported but decided by this court at our last-stated term. See pout p. -495.

It is further said that the witness was incompetent to testify, for tlie reason that he could not remember wdiat toot place before the grand jury, because when he appeared before that body he was grossly intoxicated, and that the proofs so show. But. assuming that this fact appeared, it did not affect the competency of the witness, but only went to the crediL to be given to his testimony, and this, of course, was a matter to be determined by the jury.

The action of the trial court in refusing to exclude Santo, as a witness was entirely proper.

Xext, it, is said that the trial court improperly refused to diiect a verdict of acquittal—first, because the witness Santo was so intoxicated at the time of his appearance and examination before the grand jury that he did not know or appreciate the fact that he was taking ail oath, and second, because there was no corroboration of the witness’ testimony, and that the defendants could not he convicted upon the uncorroborated testimony of a, single witness. Tbe first contention is disposed of by what has already been said. As to the second, the assertion that Santo’s testimony stood uncorroborated is contrary to the fact, as an, examination of the proofs sent up with the writ dearly discloses; particularly the testimony of the wife of the witness which was amply sufficient for the purpose.

"Next, it is argued that there was error in the following instruction to, the jury: “In order to find the defendants guilty tiie state must prove that there was an investigation pending before the grand jury at the time the oath alleged to he false was taken; that Santo was to he called as a witness before that body or was likely to Ire called as such witness, and that Santo and tiie defendants knew that he was to he called, or' was likely to be called, and that tbe defendants, having knowledge of these conditions, advised and instigated Santo to swear falsely.” Tiie point made by tbe defendants -is that tbe crime of subornation of perjury could not be committed by them unless they knew as a fact that an investigation into, tbe charge laid against tbe defendant Vukscevich was actually pending before the grand jury and that Santo was to be called as a witness before that body to testify' with relation to that charge; and that the defendants could not be guilty merely' because they' believed that Santo was likely to be called as such witness, and because of that belief advised and instigated him to swear falsely. In our opinion, the excerpt complained of was an accurate exposition of the law upon the subject. The mere fact that a person having knowledge of material facts bearing upon an investigation pending before the grand jury has not been subpoenaed as a witness, and may perhaps not be called, is immaterial. If, in that situation, the party' whose act is under investigation, or a third person, seeks out one who has knowledge of the facts involved, and, under a belief that he is likely to be brought before the grand, inquest, solicits, instigates and persuades him to falsely' testify before the grand jury with relation to the subject-matter of the investigation, and he y'ields to the solicitation, and does by reason thereof commit perjury, the party' at whose instigation he swears falsely is guilty of subornation of perjury. No authority "has been called to our attention holding otherwise, nor has our independent examination disclosed the existence of any.

Lastly', it is said that the court erred in stating to the jury as a fact that “on November 30th, 1919, there had been a complaint made against Yukscevich that he carnally knew and abused Julia Santo, a female child under the age of fifteen y'ears, and that this complaint was being investigated before the grand jury on December 8th”—the latter being the date upon which Steve Santo appeared before that body. I.t is said that there was no evidence to justify the statement that there was a complaint against Yukscevich as eaiiy as November 30th, 1919; but-this is not the fact. John Murray', a police officer of Perth Amboy', testified that on that day he arrested Yukscevich on a warrant, which he read to him. This warrant’ was offered in evidence, and, after examination by' the court, was received and marked as an exhibit. The plaintiffs in error have not seen fit to print that exhibit, for some reason or other, probably', through oversight. As a presumption of law, a. complaint against Yukscevich must have preceded the issuing of the warrant, and the warrant, itself would disclose what the eomplaint ivas. That the warrant was material to the issue being tried must be assumed from the fact of its admission in evidence by the trial court, in the absence of anything in the case which overthrows the presumption; and it could only he material upon the theory that it disclosed on its face that it. was based upon a complaint charging Yukscevich with a criminal assault upon this young girl. The contention of counsel, therefore, that the judge in the excerpt from his charge which has been quoted injected into the case a fact that had not been proven is without, foundation. We may add that, even if the statement of the trial court ivas, not justified hy the fact, we are unable to see liow the defendants were injuriously affected by it, because, as it. seems to us> it was quite immaterial in determining the question of their guilt or innocence of the charge laid against them whether the original proceeding against Yukscevich was on the day stated hy the court or earlier or later.

The judgment under review will he affirmed.  