The People v. . Courtney , 1 N.Y. Crim. 573 ( 1884 )

The argument in support of the demurrer to the indictment rests upon three propositions: first, that by section 6, article 1 of the Constitution, no person can be compelled in a criminal case to be a witness against himself; second, that the act chapter 678 of the Laws of 1869, violates this constitutional provision; and third, that false swearing on the trial of an indictment, by the party indicted, on his examination, under the act of 1869, is not, therefore, legal perjury.

Whether the conclusion is a logical or legal deduction from the premises, need not be considered, for the reason that the minor premise is not well founded. The act of 1869 is permissive, and not compulsory. It permits a person charged with crime to be a witness in his own behalf. But it does not compel him to testify, nor does it permit the prosecution to call him as a witness. He can be sworn only at his election, and the statute declares that his omission or refusal to testify shall create no presumption against him. The policy of the act of 1869 has been criticised in some cases in this court. But the policy or propriety of a law is a legislative, and not a judicial question. The supposed moral coercion upon a person accused of crime to offer himself as a witness by reason of the adverse inference which might be drawn from his omission to testify, when presumbly all the facts are known to him, is not compulsion within the meaning of the Constitution.

The Constitution primarily refers to compulsion exercised through the process of the courts, or through laws acting directly upon the party, and has no reference to an indirect and argumentative pressure such as is claimed is exerted by the statute of 1869. A law which, while permitting a person accused of crime to be a witness in his own behalf, should at the same time authorize a presumption of guilt from his omission to testify, would be a law adjudging guilt without evidence, and while it might not be obnoxious to the constitutional provision against compelling a party in a criminal case to be a witness against himself, would be a law reversing the presumption of innocence, and would violate fundamental principles, binding alike upon the legislature and the courts. The act of 1869 expressly precludes such a presumption from the silence of the accused, and while it may be difficult for a jury in many cases to exclude the inference of guilt from an omission of a defendant to be sworn, we cannot assume that it may not be done. The statute assumes it to be possible, and we cannot say, judicially, that such assumption is unfounded. The demurrer was, therefore, properly overruled.

The only remaining question worthy of notice arises on the motion of the prisoner's counsel on the trial that the court should direct an acquittal on the ground that the matters on which the perjury was assigned were immaterial. It is true that the false testimony did not bear directly upon the main issue on the trial for forgery, but only upon the credit of the witness who gave material evidence on the merits. Evidence going to the credit of a witness who has given material evidence is relevant, because it helps the jury in determining the main issue. The recent cases sustain the view that perjury may be assigned upon false testimony, going to the credit of a witness. (Reg. v.Glover 9 Cox's Crim. Cas. 501; Reg. v. Lavey, 3 C. K. 26; Arch. Crim. Pr. 817.) False swearing in respect to such matter is not distinguishable in respect to moral turpitude from false swearing upon the merits, and, we think, there is no just reason for refusing to treat false swearing as perjury whenever the testimony is relevant to the case, although it may not directly bear upon the issue to be found. The questions are carefully considered in the opinions at General Term, and further elaboration is unnecessary.

The judgment should be affirmed.

All concur.

Judgment affirmed.