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fasten the attention of the jury upon it, for no other request was made by either party. They could not tell which rule was to guide them, nor whether there was any difference be tween a preponderance of evidence and proof beyond a reasonable doubt. They may have concluded that if the People had furnished a preponderance of evidence as to sanity, they had no right to entertain a reasonable doubt upon the subject. They were told on the one hand that if the prosecution satisfied them as to the defendant's sanity by a preponderance of evidence, it was sufficient; and on the other, that if they had any reasonable doubt upon the subject, they should acquit. In the same sentence they were given a wrong rule and the right rule and they were free to follow either. If they followed the former, they did the defendant an injustice and how can we tell which they followed? They could not follow the entire instruction because a preponderance is not enough, although the ecurt told them it was. They could only follow the correct part of the proposition by disregarding the incorrect part, and this they were not at liberty to do. The natural result of the entire charge, both the body, and in response to the request, was to confound the two rules and lead the jury to believe there was no difference between them. The original error was not cured, but was perpetuated and confirmed by the last utterance of the court to the jury. As, in my judgment, an improper instruction was given and the proper instruction was refused. in violation of the defendant's lawful right, I am compelled to vote for reversal and a new trial.

PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT and MARTIN, JJ., concur with GRAY, J.; VANN, J., dissents.

Judgment of conviction affirmed.

Court of Appeals.

June, 1903.

THE PEOPLE v. ROBERT L. MARTIN.

(175 N. Y.)

PERJURY-PENAL CODE, SEC. 96-OATHS TAKEN IN THIS STATE IN COMPLIANCE WITH LAWS OF FOREIGN STATES.

Section 96 of the Penal Code, relating to perjury, includes not only any and every false and corrupt oath and affidavit taken or made in this State which is permitted or required by our statutes, but also includes any and every oath or affidavit so taken or made if permitted or required by the laws of any other State of the Union, whenever under the general law of comity, which exists between the States, they would be considered and given effect in this State; and hence an officer of a foreign corporation, who is required by a statute of the State where it was created to take an oath as to the amount of capital stock paid in, who swears falsely to such amount before a notary public in this State, is guilty of the crime of perjury.

Affirming 77 App. Div. 396, 17 N. Y. Crim. Rep. 150.

APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 26, 1902, reversing a judgment of the New York Court of General Sessions, which allowed a demurrer to the indictment, and directing the defendants to plead thereto.

The defendants demurred upon various grounds, but principally upon the ground that the facts stated did not constitute a crime, and that is practically the only ground relied upon. The facts, so far as material, are stated in the opinion.

Frederic R. Kellogg and Franklin Bien, for appellants.

William Travers Jerome, District Attorney (Howard S. Gans, of counsel), for respondent.

MARTIN, J.: We have reached the conclusion that the judg ment of the Appellate Division should be affirmed. We also VOL. XVII-26

66

concur in the able opinion of that court, and should rest our decision thereon but for the intimation therein that the words required by law," contained in the statute defining the crime of perjury, are to be limited to affidavits and oaths required by the laws of this State. With that suggestion we do not agree. Hence, the only question we deem it necessary to consider is whether, under our statute, a person taking a false and corrupt oath in this State, required or permitted by the laws of sister State, is guilty of the crime of perjury.

Section 96 of the Penal Code, so far as material to the question involved, declares: "A person who swears

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any material matter to be true which he knows to be false, is guilty of perjury." The indictment in this case charges that the defendants were respectively president and secretary of the Delaware Surety Company, a corporation duly organized and existing under the laws of that State; that by the general corporation law thereof the president, with the secretary or treasurer of every such corporation, is required, on the payment of the capital stock thereof, to make a certificate stating whether it has been paid in cash or by the purchase of property, and stating also the total amount of the capital stock paid in, which certificate must be signed and sworn to by the president and secretary or treasurer, and when so verified to be filed in the office of the Secretary of State; that on the 15th of May, 1901, in the city of New York, the defendants appeared before a notary public, duly appointed, sworn and qualified in and for the county of New York, and thereby duly authorized and em

powered to administer oaths and take affidavits, and falsely, corruptly and knowingly made oath to a certificate that the entire capital stock of said surety company of $1,000,000 had been paid in cash, which they uttered and published as true, and the same was filed in the office of the Secretary of State of the State of Delaware.

The important question is whether the indictment shows that the officer before whom the affidavits of the defendants were taken had jurisdiction to take their oaths thereto. That he had general authority to take affidavits there can be no doubt. (Executive Law, sec. 85; Laws of Delaware, vol. 17, ch. 212.) But the more difficult question is whether the defendants' affidavits were taken and sworn to upon an occasion in which an oath was required by law, was necessary for the prosecution or defense of a private right, was for the ends of public justice, or was one in which oaths might be lawfully administered, within the spirit and meaning of section 96. The strenuous contention of the appellants is that the occasion mentioned in the statute must be one established, required or permitted by the laws of this State, and that the fact that such affidavits were required or permitted by the laws of a sister State, or they were necessary for the prosecution or defense of a private right or for the ends of public justice in such other State, does not constitute such an occasion as is contemplated by the statute. This seems a very narrow, technical and restricted construction of the broad language of that statute, one that can hardly be considered as within the purpose of the Legislature, and should not be adopted unless required by that statute or some other controlling principle of law.

It is to be observed that the statute has essentially enlarged the rule which existed at common law in relation to the crime of perjury. The evident purpose of the Legislature was to adopt a statute which would include and provide for the punishment of the act of taking a false and corrupt oath in this

State whenever it was required or permitted by our laws or by the laws of any other State or Commeonwealth that might be regarded or treated as valid here. In other words, the purpose of this statute was to include within the definition of the crime of perjury the taking of any and every false and corrupt oath, unless it was purely voluntary and extra-judicial, in not being required, authorized or permitted by any law that might be enforced or carried into effect in our jurisdiction or elsewhere, or in not being necessary for the prosecution or defense of a private right, or for the ends of public justice wherever sought to be administered. That this was the broad purpose of that statute is not only plainly indicated by the language employed, but when we examine it in the light of the history of its adop tion, in connection with the other provisions of the Penal Code relating to the subject of perjury, and construe it in accordance with the provisions of section 11 of that Code, it becomes obvious that such was its intent and purpose.

While the statutes of one State which derive their force from the authority of the Legislature that enacts them have no absolute or exclusive force or vigor beyond the boundaries of the State, but must be regarded as foreign laws, of which courts do not take judicial notice, still they may be proved and taken into consideration in proper cases, subject to the provisions of domestic statutes and of the Constitution. This principle is based upon the common and international law originating in the comity which exists between civilized nations and States, to which, as between the States of the Union, is added the force of the Federal Constitution It is true there has been some difference of opinion as to the effect of the provisions of the Constitution, which declares that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State," it being claimed, upon the one hand, that this provision is unlimited and requires each State to give full and absolute faith and credit to the acts of

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