Harris v. . People , 64 N.Y. 148 ( 1876 )

The plaintiff in error was convicted of perjury in the General Sessions of the city and county of New York, and was sentenced to ten years imprisonment in the State prison. The perjury is alleged, in the indictment, to have been committed on the 13th day of September, 1873, before George H. Sheldon, fire marshal of the city, who was, at the time, investigating the cause, origin and circumstances of a fire which occurred on the 5th day of September, 1873, in a building occupied by Harris and his partner as a tobacco manufactory.

Upon the investigation, Harris swore that at the time of the fire he was not in the city of New York, but that he was in the city of Troy. He also swore that, at the time of the fire, there was in the building a stock, belonging to him and his copartner, consisting of 65,000 cigars; 185,000 cigarettes; 400 pounds of Havana tobacco, of the value of one dollar and fifty cents per pound; 645 pounds of Virginia tobacco, of the value of sixty-five cents per pound; and that he and his partner sustained a loss by the fire of between $5,000 and $6,000. The facts thus sworn to were alleged in the indictment to have been false, and evidence was given upon the trial tending to show that they were all false.

It was claimed upon the trial, on behalf of the prisoner, that the fire marshal had no power or authority to administer an oath to Harris, and this is the first ground of error alleged here. To show that it has no foundation, little more is needed than to bring together the statutes relating to the powers and duties of the fire marshal.

It was provided, by section 1, chapter 332 of the Laws of 1852, as amended by section 36, chapter 569 of the Laws of 1857, that the general superintendent of police of the city of New York was "authorized and required to make an investigation into the origin of every fire occurring in said city," and for that purpose he was invested with the same powers and jurisdiction as were possessed by the police justices of the city. The police justices had jurisdiction, upon complaint made to them, to subpœna and swear witnesses for the purpose of ascertaining whether any crime had been committed. (2 R.S., 707.) In 1868 (chap. 563) an act was passed creating the "office of metropolitan fire marshal, and prescribing its powers and duties." He was to be appointed by the board of metropolitan police. And section 2 made it his duty "to examine into the cause, circumstances and origin of fires by which any building, vessels, vehicles or any valuable personal property shall be accidentally or unlawfully burned, destroyed, lost or damaged, wholly or partially; and to especially inquire and examine whether the fire was the result of carelessness or the act of an incendiary." He was directed to take the testimony, on oath, of all persons supposed to be cognizant of any facts or to have means of knowledge in relation to the matter to be examined and inquired into, and to cause the same to be reduced to writing and verified. By section 3, he was empowered to issue a notice, in the nature of a subpœna, to compel the attendance of any person, as a witness, before him to testify in relation to any matter the subject of inquiry and investigation by him. He was authorized to administer oaths to the witnesses, and it was provided that false swearing in any matter or proceeding before him should be deemed perjury, and punishable as such. The next statute upon the subject was passed in 1870 (chap. 383, § 21), and simply provided that the board of police of the city of New York should have the power to appoint a fire marshal, who should have the like powers and perform the like duties as those provided by the statute of 1868 above referred to. In 1871, by section 4, chapter 584, it was provided that all the provisions of the statute of 1868 "creating the office of metropolitan fire marshal, and prescribing the powers and duties thereof, shall be and remain in force so far as applicable;" and that "for the purpose of investigating the origin of fires, incendiary or otherwise, and bringing to punishment the parties guilty of arson, the said fire marshal is hereby invested with the same powers and jurisdiction as were heretofore conferred upon the superintendent of police of the city of New York in relation thereto" under the statute of 1852, as amended in 1857, above referred to. By section 76, chapter 335 of the Laws of 1873, an act to reorganize the local government of the city of New York, it was provided as follows: "Another bureau shall be charged with the investigation of the origin and causes of fires, the principal officer of which shall be called fire marshal, who shall possess all the powers and duties now possessed and performed by the fire marshal appointed pursuant to chapter 383, Laws of 1870, and chapter 584, Laws of 1871, and the acts amendatory or supplementary thereof."

The claim made on behalf of the plaintiff in error is, that under these statutes the fire marshal had no authority to institute an investigation and inquiry into the circumstances of a fire without a complaint is first made to him. It is entirely clear, however, from the language used, as well as from a consideration of the purposes of the statutes, that a complaint is not necessary to call into action the powers of the fire marshal. He has all the authority conferred by the statute of 1852, as amended in 1857, upon the superintendent of police. That statute conferred the authority and imposed the duty to investigate. No complaint was necessary, but in conducting the investigation the superintendent was invested with the powers and jurisdiction of police justices, and they had authority to subpoena witnesses and swear them. He also had the authority conferred by the statute of 1868, which made it his duty to institute the investigation, and did not impose, as a preliminary, any complaint. These statutes were a portion of the police regulations for the city. Their design was to protect the city against fires, both accidental and incendiary, and an officer was clothed with ample powers to accomplish the purpose, and the only thing required to call into exercise his jurisdiction was a fire within the city limits.

It is also claimed that there was a fatal variance between the indictment and the proof, in that the indictment alleges that Harris swore before the fire marshal that there were 60,000 cigars in the building at the time of the fire, whereas the proof showed that he swore that there were 65,000. This objection was in no form made at the trial, and therefore cannot avail here. If it had been made, the evidence as to that item could have been excluded or waived, or the judge could have instructed the jury to disregard the evidence, and there would still have been enough to uphold a conviction. The variance was as to one of a number of distinct items as to which Harris was charged with swearing falsely, and if the jury had found that he swore falsely as to the other items, or as to any one of them, a verdict of guilty would have been proper. Where an indictment charges that the prisoner has stolen a number of articles, or has inflicted a number of blows, or has obtained goods by a number of false pretences, or has sworn falsely in an affidavit as to several facts, it is not necessary to prove all that is charged. It is sufficient to prove enough to make out the offence charged. (3 Russell on Cr. [4th Lond. ed.], 105; Reg. v. Rhodes, 2 Lord Ray., 886; 3 Starkie's Ev., 860, Tomlinson's Case, 4 City Hall Rec., 125; Roscoe's Cr. Ev. [6th Am. ed.], 763.)

We are also of opinion that the variance was not material, and could be disregarded. And, for the purpose of testing this question, we must treat the case as if the indictment contained no other charge of perjury. The strictness of the ancient rule as to variance between the proof and the indictment has been much relaxed in modern times. Variances are regarded as material, because they may mislead a prisoner in making his defence, and because they may expose him to the danger of being again put in jeopardy for the same offence. The variance here could present no such difficulty. The indictment charged him with swearing falsely that he had 60,000 cigars in the building when, in fact, he swore that he had 65,000 there — a mistake in his favor. The falsehood did not consist so much in swearing to the precise number, for as to that he could be innocently mistaken, and preciseness was not important, but it consisted in swearing to a much larger number than he had. If the indictment had charged him with swearing falsely that there were 65,000, and he had proved that he actually had in his building 60,000, his oath would, considering the purpose for which and the circumstances under which it was given, have been regarded as substantially true, and the variance immaterial. (People v. Warner, 5 Wend., 271.)

There were two counts in the indictment, the first charging perjury in the oral testimony given before the fire marshal, and the second charging perjury in swearing to an affidavit before the same officer, containing, in substance, the same matters testified to orally. The jury found the prisoner not guilty under the first count, and guilty under the second count. It is now claimed that the verdict was repugnant, inconsistent and void; that the prisoner could not be innocent under the first count and guilty under the second. The facts do not warrant the claim made. The two counts were not alike. The first was for oral false swearing, and the second was for false swearing in the affidavit. The fire marshal was not present when the oral evidence was all given. The material facts of the oral evidence may have been taken by his assistant in his absence; and hence the jury may have well found that, as to the oral evidence, the false swearing charged did not take place before the fire marshal, and hence that the prisoner was not guilty as to that; and hence there is no repugnancy or inconsistency in the verdict of guilty under the second count based upon the affidavit.

Having thus carefully considered all the objections to which our attention has been called, we have reached the conclusion that the conviction must be affirmed.

All concur.

Judgment affirmed.