
    The People of the State of New York, Respondent, v. David Scharfstein, Appellant.
    Second Department,
    May 29, 1914.
    Crime —perjury — indictment— evidence —erroneous charge.
    Upon the prosecution of a defendant, under an indictment charging perjury on the trial of an action, it is error for the court to charge that the defendant may he convicted of perjury for false testimony given either before the grand jury or at the subsequent trial.
    Appeal by the defendant, David Soharfstein, from a judgment of the County Court of Kings county, rendered against him on the 24th day of February, 1914, convicting him of the crime of perjury.
    
      Nathan D. Shapiro, for the appellant.
    
      Edward A. Freshman, Assistant District Attorney [ James C. Cropsey, District Attorney, with him on the brief], for the respondent.
   Per Curiam:

This indictment having charged the defendant with false testimony on the trial of People v. Kleinberg, the proof was that the defendant had testified before the grand jury that he had a look at the faces of persons whom he identified as coming out of the cellar right after the burglary. Being called at the Kleinberg trial, he contradicted this testimony before the grand jury and declared that he did not seethe faces. After the jury had gone out they returned and inquired of the court as follows: “In our consideration of the evidence in this case, does it make any difference whether the defendant committed perjury before the Grand Jury or at a subsequent trial of this defendant?” To this request the court replied: “No. You may predicate perjury upon either.”

This was error. Under this indictment defendant could not have been convicted of perjury for his testimony before the grand jury. The indictment charged the crime in falsely testifying at the trial. Proof that he falsely testified at a time and place other than that specified in the indictment did not prove the offense charged, and deprived the defendant of his constitutional right. Under this instruction defendant could be, and presumably was, convicted of perjury founded on his testimony at a time and place not set forth in the indictment. For this error the judgment of the County Court of Kings county must be reversed and a new trial ordered.

Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

Judgment of conviction of the County Court of Kings county reversed and new trial ordered.  