People v. Clemente , 285 A.D. 258 ( 1954 )

Peck, P. J.

Defendant has been convicted of perjury in the first degree (Penal Law, §§ 1620, 1620-a) for false testimony given before the New York State Crime Commission in the course of its investigation of the New York City waterfront. This investigation was part of its broad mandate by Executive Order to investigate generally the relationship between organized crime and units of government. In the course of its investigation, defendant was called first to a private hearing and later to a public hearing at which he was questioned concerning the receipts of money from a certain shipping company in return for his indulgences as a labor leader. He denied receiving any such payments. The indictment charges that his testimony was perjured and constituted perjury in the first degree.

No question is raised as to the sufficiency of the evidence to sustain the conviction. Two exceptions are taken to the trial court’s rulings, raising the important questions on this appeal.

1. The court ruled that the question of the materiality of the perjured testimony was one of law for the court rather than one of fact for the jury. Accordingly, the court refused a request of defendant’s counsel to submit the question of materiality to the jury and charged the jury that if they were satisfied beyond a reasonable doubt that counsel for the Crime Commission had told the truth when he testified at the trial as to the scope of the hearing that was in progress before the Crime Commission at the time defendant testified, then as a matter of law defendant’s testimony was material to that inquiry.

2. The court refused defendant’s request to submit to the jury the alternative of finding defendant guilty of perjury in the second degree in addition to the alternatives submitted of a first degree finding or an acquittal.

Defendant contends that the court erred both in charging materiality as a matter of law and in refusing to submit second degree perjury to the jury.

The question of whether materiality is to be determined by the court or by the jury is not free from doubt and difference of judicial opinion. Many cases are cited from other jurisdictions, some holding that materiality in a perjury prosecution is a matter of fact for the jury, but most holding that it is either a matter of law for the court or a mixed question of law and fact. We need not dwell on this diversity of authority, however, because the statutory law in New York, defining perjury and dividing it into degrees, is different from the law of other States, and the Court of Appeals has spoken on the subject sufficiently, although perhaps not definitively, to guide our way.

The important factor in considering the law of New York is the changes made in the law in 1935 and 1936. Prior to that time perjury was a single degree crime in which materiality was an essential element, and the Court of Appeals had stated that materiality was a question of law for the court (People ex rel. Hegeman v. Corrigan, 195 N. Y. 1). In 1935 the New York Penal Law was amended to divide the crime of perjury into two degrees, depending on whether the false testimony related to material matter. If material, the crime was in the first degree; if not material, the crime was in the second degree. In 1936 perjury in the second degree was made a misdemeanor whereas theretofore it had been a felony. Of the amendments and their effect upon the law with respect to the determination of materiality, the Court of Appeals said in People v. Samuels (284 N. Y. 410, 414-415): By the amendments of 1935 and 1936 the crime of perjury became similar to other crimes with varying degrees and, like such crimes, subject to the provision of section 444 of the Code of Criminal Procedure. Views to the contrary are based principally upon what was said on the subject of materiality in People ex rel. Hegeman v. Corrigan (195 N. Y. 1). (Report of the Law Revision Commission, 1939, p. 307.) It must be remembered, however, that People ex rel. Hegeman v. Corrigan was decided when there were no separate degrees of perjury, and when materiality was an essential element of the crime.”

This observation of the Court of Appeals is in line with the report of the Law Revision Commission which sponsored the 1935 and 1936 amendments and with the reason for the amendments. The commission had noted the high incidence of perjury and the low incidence of convictions, evidencing the reluctance of juries to convict for the high penalty crime, and stated in its 1939 report (1939 Report of N. Y. Law Revision Commission, p. 307): “ The amendments of those years were made to bring penalties down to a point where juries would convict; they were also intended to give juries a choice of finding materiality, and so convicting of first degree perjury, or of finding false swearing without the element of materiality and so convicting of second degree perjury.”

While the commission’s further discussion of the matter in its “ Study Relating to Materiality in Perjury as a Question of Law or a Question of Fact ” reveals considerable confusion on the subject, we accept the commission’s statement as to the purpose of the 1935 and 1936 amendments, and it seems to us that the purpose can be served and the law carried out only by submitting to the jury the question of materiality. That this is also the view of the Court of Appeals seems clearly indicated in People v. Samuels (supra); People v. Hirsh (283 N. Y. 638); People v. Schappes (291 N. Y. 575), and People v. Reardon (305 N. Y. 831), although no opinion was written in any of these cases except the Samuels case and what was said on the subject in that case was dictum.

Apart from authority, we cannot agree with the District Attorney in his argument addressed to the principle of the matter, contending that the question of materiality is obviously a legal question for the court and one which is beyond the jury’s province and capabilities. "While as lawyers we are accustomed to thinking of materiality as a matter for judicial ruling, there is nothing in the nature or quality of materiality which makes it essentially a legal concept or removes it from the ken of a layman’s discernment and determination. The word ‘ ‘ material ’ ’ and the idea of materiality are commonly understood, and every day judgments on a variety of subjects are made upon the basis of a layman’s sense of materiality.

In the last analysis questions of materiality cannot be removed from a jury’s consideration. Although to an exclusionary extent the court may rule out evidence as immaterial, it does not follow that the materiality of the evidence admitted is not something for the jury to consider in weighing the evidence. When we say that the materiality of evidence is for the court but the weight to be given to it is for the jury, we only indicate a certain separation in the function of court and jury in sifting the evidence. It would be a mistake to think that any question of materiality is thereby removed from the jury’s sphere or that the jury process of weighing evidence is something entirely apart from judging its materiality.

What the law really does, in the interest of a fair trial and reasonably controlled trial, is to vest in the court a preliminary power of ruling on the materiality of evidence to the end that evidence which a jury should not consider at all may be excluded from their consideration altogether. A ruling in favor of materiality means no more than that the jury may consider the evidence. Its materiality then becomes a question of fact for the jury. And certainly materiality as a substantive element of the crime of perjury is something more than materiality considered in an evidentiary ruling by the court. Materiality in such a case becomes a matter for ultimate determination by the decisional process.

We are not persuaded to the view, therefore, that the nature of the subject requires the removal of the question of materiality from the jury’s consideration or reserving it to the court. Especially where the legal frame for considering and weighing the element of materiality in a perjury case is as it is under the New York Penal Law, we are of the opinion that the question of materiality should be left to the jury.

This does not mean that the question need be posed nakedly to the jury for their determination without instructions relating their consideration of the question to the facts of the case. We make no attempt to prescribe or circumscribe the court’s charge, but we are of the opinion that under an appropriate instruction the jury should be given to understand that they must consider and determine the question of materiality as an essential element of the crime, particularly in determining whether, if they find false swearing, it amounts to perjury in the first degree or perjury in the second degree.

We also think that the trial court was obliged to submit the alternative of a second degree finding to the jury. Even if the court’s charge in chief, making the determination of materiality turn on the jury’s belief or disbelief of the testimony of counsel for the Crime Commission, were sustainable, the defendant would still be entitled, at his request, to have the possibility of disbelief recognized and recorded in a second degree verdict.

The District Attorney, in his brief before us, frankly states the case leading to that conclusion. He states that it would have been technically possible for the court in this case to give further instructions to the effect that if the jury did not believe the underlying facts testified to by counsel for the Crime Commission they might go on to consider perjury in the second degree, of which materiality is not an element. This would constitute, the District Attorney observes, a direct application of section 444 of the Code of Criminal Procedure under a charge presenting materiality as a question of mixed law and fact and illustrates the general consistency of such a charge with the operation of that statute in perjury cases. However, as the District Attorney concludes, the court did not follow this procedure but directed the jury to acquit in the event of factual disbelief rather than to go on and consider second degree perjury.

We conceive this limitation on the jury’s province to be error. The rule is clear that the trial court must charge alternative degrees of crime and give the jury a choice between them, as well as of an acquittal, wherever a verdict in different degrees would be permissible on the evidence. Although properly arguing that the primary reason for this rule is to save a prosecution from failure where the crime charged is not altogether established but a crime of lower degree is proven, the District Attorney concedes that the defendant, as well, is entitled to have the several degrees of crime charged.

We must recognize and regard the reality of the psychological factors involved and the importance of allowing them legitimate play in a criminal case. Such recognition underlay the report of the Law Revision Commission recommending dividing the crime of perjury into degrees. The psychological factor could not have been more frankly acknowledged than it was in that report.

It is the policy of the law to allow juries a latitude which is . not hemmed in by absolute logic. Many considerations enter into a jury’s verdict which cannot be itemized and weighted in a chart of legal instructions. A jury is expected to stay within the bounds of reason, yet they may indulge tender mercies even to the point of acquitting the plainly guilty. Similarly they may, on almost any excuse, convict of a lower degree of crime although conviction of a higher degree is clearly warranted.

Take the present case as an example. The jury was out for long hours, asked for a reading of parts of the evidence and for additional instructions and apparently had a considerable struggle in arriving at a verdict. It may well have been that if second degree perjury had been submitted to them they would have embraced that alternative. We think that if a second degree conviction was at all permissible on the evidence the jury should have been given that alternative and the defendant that chance.

Certain cases are cited to us where appellate courts have held that the trial court was not obliged to submit a lower degree of crime to the jury. Those are all cases where there was no possible basis in the evidence for finding that the lower degree of crime had been committed. (See People v. Meegan, 104 N. Y. 529, and People v. Mussenden, 284 App. Div. 479.) In other words, where there is neither a factual nor a legal basis for any finding other than one of guilt in the higher degree or acquittal, there is no obligation upon the trial court to submit some intermediate alternative. Such a case, for example, would be an acknowledged crime of burglary with all the elements admittedly established and the defense placed solely on the ground that the defendant was not in the vicinity at the time of the crime. Obviously the only question in such a case is the identification of the defendant with an admitted burglary, calling for a verdict of guilty of that charge or acquittal, and there would be no room for a finding of unlawful entry instead of burglary or any requirement or warrant for the court submitting a lower degree of crime to the jury.

It may be forcefully argued, as the District Attorney argues, that the materiality of the false testimony given in this case is so obvious that there was no rational basis for a second degree verdict rather than a first degree verdict. The answer to that is that materiality was not conceded — indeed it was put in issue though not pressed — and no essential element of a crime, however clear the facts may he in the evidence, may be taken away from the jury or a verdict in any respect directed by the court. (People v. Walker, 198 N. Y. 329; People v. Marendi, 213 N. Y 600, 618; People v. Flack, 125 N. Y. 324, 334.)

At least there was a factual question, however clearly indicated the answer was, of the scope of the Crime Commission inquiry at which defendant was called to testify. The court submitted that question to the jury, as he deemed he was obliged to do, in the form of leaving the question of the Crime Commission counsel’s veracity to the jury. It seems to us that the legal corollary is that the defendant was entitled to a charge, which the District Attorney concedes was permissible and which we say was therefore required, as to what the jury might do if they did not accept the testimony of counsel for the commission as to the scope of the inquiry. In that event, and the event could not be taken away from the jury, they were entitled to bring in a verdict in the second degree.

It is our conclusion, therefore, that regardless of whether the question of materiality as such should have been submitted to the jury, the court was obliged, at defendant’s request, to give the jury the alternative of a second degree conviction in the event that they did not accept the testimony of counsel for the Crime Commission.

The judgment should he reversed and a new trial ordered.