N. C. 96; People v. Cahill, 193 N. Y. 232, 86 N. E. 39, 20 L. R. A. (N. S.) 1084. Immunity is purely a creature of statute. There is nothing in the moving papers to show that any constitutional right of the defendants was violated by the December grand jury.

The motion to dismiss the indictment is denied.

[3] Third. A demurrer has also been interposed upon the several grounds named in the Code of Criminal Procedure. This indictment is to be tested by the rules governing pleadings in the obtaining of property by means of faise pretenses. The intent to defraud and the felonious taking are very fully alleged. The false writing, by the use of which it is charged the felony was committed, is set forth in full; but the indictment does not charge in detail how the fraud was committed by the use of this writing. These facts are the subject of proof and not pleading. People v. Eaton, 122 App. Div. 706, 107 N. Y. Supp. 849.

"The averment of the pretenses by the indictment are only to give the defendant notice of what may be proved against him; the mode of obtaining need not be pleaded; and, if any pretense is capable of defrauding, that is sufficient." Thomas v. People, 34 N. Y. 351.

[4] The indictment, also, does not charge reliance upon the writing. The equivalent is charged in the statement that, by color and aid of the false writing, the property was feloniously taken. Clark v. People, 2 Lans. 329; People v. Sattlekau, 120 App. Div. 42, 104 N. Y. Supp. 805.

[5] The denials of truth are sufficient. They are generally charged as being in all respects utterly false and untrue, to the defendants' knowledge, and two pretenses are specifically charged as being false. It is true that the date of the false writing is a year earlier than its use. The charge, however, is that the writing was false when it was used in obtaining the property. The date of the writing is therefore of little importance in considering the demurrer. The indictment must be considered as a whole, and from it the defendants are fairly apprised of the charge, viz., that, upon the 23d of July, 1911, with intent to defraud, etc., by means of a false writing which is set forth, the defendants feloniously obtained from E. Edward McClure the sum of $125, and that the principal fact stated in said false writing, viz., the possession of five barrels of whisky at the time the money was obtained, was to the defendant's knowledge false.

Upon this general subject of the sufficiency of the indictment, counsel are referred to People v. Helmer, 154 N. Y. 600, 49 N. E. 249, and Code Crim. Pro. §§ 284, 285.

Demurrer overruled.

(76 Misc. Rep. 581.)

PEOPLE v. WEBBER.

(Ulster County Court. May, 1912.)

1. CRIMINAL LAW (§ 42*)—PRIVILEGE OF WITNESS.

Where a witness, without claiming his privilege against self-incrimination, testifies before a grand jury in a proceeding not directly against him, perjury may be predicated on such testimony, and his motion to dismiss the indictment on the ground that his constitutional rights were violated will be denied.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 45-48; Dec. Dig.

42.*]

2. PERJURY (8 25*)-INDICTMENT MATERIALITY OF FALSE TESTIMONY.

Where the materiality of false testimony of defendant, charged with perjury, appears both from direct allegation of its materiality and from the facts alleged, a demurrer to the indictment will be overruled.

[Ed. Note. For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. 25.*]

Samuel W. Webber was indicted for perjury. Motion to inspect minutes of grand jury, and motion to dismiss the indictment upon the ground that defendant had gained immunity, denied. Demurrer to indictment overruled.

William D. Cunningham, Dist. Atty., for the People.

G. D. B. Hasbrouck (Brinnier & Canfield, of counsel), for defend

ant.

CANTINE, J. For the reasons stated in the case of People v. Elite Distributing Company and Samuel W. Webber, 137 N. Y. Supp. 235, the motion for an inspection of the grand jury minutes is denied.

[1] The defendant claims, in the motion to dismiss the indictment, that his constitutional immunity from testifying against himself was infringed, when he was called before the grand jury, in October, to testify in the case of People v. Kiss and Graubart, and, even conceding his statement before the grand jury to be false, and material to the issue, it could not be the basis of a charge for perjury. These Iviews are based upon the opinion of Justice McLaughlin, concurred in by Justice Ingraham, in People v. Gillette, 126 App. Div. 665, 111 N. Y. Supp. 133. The majority of the court in that case did not concur in those views. In an earlier decision, People ex rel. Hummel v. Davy, 105 App. Div. 598, 94 N. Y. Supp. 1037, will also be found a dissenting opinion of Justice Ingraham expressing the same ideas.

We must eliminate, in considering this subject, all cases in which a person is called as a witness, sworn and claiming his privilege, and an application thereupon to punish him for contempt. The law in that line of cases is well settled. Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110; People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 68 N. E. 353. A second situation must also be eliminated, viz.: A witness is called, a claim of privilege is made and overruled by the magistrate or tribunal, and an answer compelled. In that situation the law is that no use can be made of the answer. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

The third situation is presented by this motion, viz.: Proceedings pending, but not directly against the witness, who is subpoenaed, the privilege not claimed, and the crime of perjury predicated upon his answers. Thus eliminated and defined, the proposition falls within the principles laid down in the decisions beginning with Hendrickson v. People, 10 N. Y. 13, 61 Am. Dec. 721, and ending with People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, viz., that the constitutional right must be claimed by the witness at the time the question is asked. It is purely personal, and, if not claimed at the time, it is waived, and the answer becomes voluntary. The answer thus given may thereafter be used against the witness when subsequently charged with the commission of the crime. The testimony so given before a tribunal is to be tested by the same standards as the testimony of any witness.

The motion to dismiss the indictment, is denied.

[2] Third. The demurrer raises the question of the materiality of the testimony. The indictment must show either that the testimony given was material to the issue upon trial, or under investigation, or the facts must be alleged in the indictment showing how the testimony was material. If the former alternative is employed, then no facts showing the materiality need be alleged. If the latter, then no allegation of materiality becomes necessary, as the facts alleged show the materiality. People v. Tillman, 139 App. Div. 572, 124 N. Y. Supp. 44, affirmed 201 N. Y. 598, 95 N. E. 1136; People v. Peck, 146 App. Div. 266, 130 N. Y. Supp. 967.

This indictment under consideration covers both alternatives. The materiality appears from the allegation of materiality and from the facts alleged, viz., that Kiss and Graubart represented themselves to be in the employ of the Elite Distributing Company, and that, being so employed, the certificate was properly in their possession, and that they were authorized to sell the same. The testimony of Webber was to the effect that Kiss and Graubart were discharged, and were not authorized to represent themselves as the agents of the Elite Distributing Company, and had no right to the possession of the certificate. The charge against Kiss and Graubart under consideration included. within its limits the obtaining of the property by means of a false token, viz., the certificate, and also the representations made in connection therewith.

Demurrer overruled.

BOHRINGER ▾ CAMPBELL.

(Supreme Court, Appellate Division, Second Department. September 10, 1912.) 1. MUNICIPAL CORPORATIONS (8 706*)-COLLISIONS-NEGLIGENCE-QUESTION FOR JURY.

Whether a child. about nine years old was struck by an automobile, and whether the automobile was negligently operated, held, under the evidence, for the jury.

[Ed. Note.--For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*]

2. MUNICIPAL CORPORATIONS (8 706*)-COLLISIONS-CONTRIBUTORY NEGLIGENCE- -QUESTION FOR JURY.

Whether a child, struck by an automobile, was guilty of contributory negligence, held, under the evidence, for the jury.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*]

3. EVIDENCE (§ 147*)-NEGATIVE AND POSITIVE EVIDENCE-QUESTION FOR JURY.

Where persons who could have heard the horn of an automobile, had it been sounded, testified that they did not hear it, a finding that the horn was not sounded was justified, though there was evidence that it was sounded.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 435-437; Dec. Dig. § 147.*]

Jenks, P. J., and Burr, J.. dissenting.

Appeal from Trial Term, Westchester County.

Action by Leonhard Bohringer, administrator of Leonhard Bohringer, Jr., deceased, against Samuel O. Campbell. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

This is an action to recover for the death of plaintiff's intestate, alleged to have been caused by the negligence of defendant's chauffeur in operating an automobile owned by defendant and in which he was riding.

Argued before JENKS, P. J., and BURR, THOMAS, WOODWARD, and RICH, JJ.

Bertrand L. Pettigrew, of New York City (Walter Lester Glenney, of New York City, on the brief), for appellant. James Dempsey, of Peekskill, for respondent.

RICH, J. At the time of the accident the deceased was between 9 and 10 years of age. On the afternoon of May 27, 1910, with one or more playmates, he was playing ball in Washington street, in the village of Peekskill, about 20 or 25 feet north of the north crossing of Hudson avenue, which avenue crosses Washington street at right angles. The defendant's automobile approached from the north ať a speed of from 15 to 18 miles an hour. There was no other travel in the street, and the children were seen by the occupants of the automobile before the Hudson avenue crossing was reached. The deceased started on a fast run to cross the street in a diagonal

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-16

direction, from the east to the west side. As the automobile approached the boy, its course was changed diagonally towards the west, so that it and the boy came together at or near the curb on the west side of the street. The defendant contends that there is no evidence of negligence on the part of the chauffeur, that the deceased was guilty of contributory negligence, and that the verdict is excessive. These are the questions argued.

*

[1, 2] It is urged that there is no evidence that the automobile ran over the deceased; that the evidence establishes that the deceased fell, and received the injuries causing his death as the result of the fall alone; and that the automobile did not even come in contact with him. This contention overlooks the evidence of the witness Mead, who was an eyewitness of the accident, who testifies that he saw the automobile hit the boy and knock him down, then raise as though it was running over something, settle down, and stop, and that "the car followed the boy clean across the street and caught him, caught him in the gutter"; the admission of the chauffeur, who testified on cross-examination, "I said this morning that the front wheel of the car hit the boy, passing over him, the front wheel of the car hit the boy;" the testimony of the physician that there was a fracture of the skull at the base of the brain, which was the fatal injury, and a compound fracture of the right arm, which was "crushed and the tissues were lacerated and torn and dirty, dirt ground into them," which the doctor testified could not have resulted from a fall; and this conclusion is made apparent by the undisputed fact that the boy fell forward on his face, while the fracture causing death was on the back of the head, at the base of the brain. It is also shown that the body of the boy was taken by the chauffeur from under the car, between the front and rear lefthand side wheels. This evidence was sufficient to take the case to the jury on the question of defendant's negligence and the freedom from negligence of the deceased. These questions were for the jury to determine. The learned trial justice submitted them under a charge free from error, and the verdict rests upon sufficient evidence to sustain it.

Our attention is called to Seaman v. Mott, 127 App. Div. 18, 110 N. Y. Supp. 1040, and West v. Metropolitan Street R. Co., 105 App. Div. 373, 94 N. Y. Supp. 250, as being similar cases, controlling the disposition of this appeal. I do not so regard them. In both of those cases the decision was based upon the fact that no act or omission of the chauffeur permitted a finding of his negligence. In the case at bar there is the evidence of the change of the direction of the automobile, from which the jury might have found that the accident would not have occurred, had not the chauffeur changed his course, and, in addition, the testimony of the eyewitness Mead, which is sufficient of itself to permit the finding that the chauffeur was negligent, together with the statement of the driver, made immediately after the accident to an officer of the Peekskill force, that "he thought he could get by that boy by going around him to the left," and "did not shut off the power" until he got in the gutter, and