The People of the State of New York Ex Rel. John R. Hegeman v. . Joseph E. Corrigan, as City Magistrate of the City of New York, the People of the State of New York, the Same v. . the Same, the Same

The perjury with which the relator is charged is the verification under oath of a report to the insurance department of the State, in which, in answer to a question calling for a statement of the loans held by the company secured by the pledge of bonds, stock or other collateral, it was stated that there were none. For the purpose of determining whether the evidence was sufficient to justify the magistrate in issuing a warrant, it becomes necessary to consider the rules of law applicable to the case. Section 96 of the Penal Code prescribes: “A per 250 son who swears or affirms that he will truly testify, declare, depose, or certify, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed, is true, in an action, or a special proceeding, or upon any hearing, or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered, and who in such action or proceeding, or on such hearing, inquiry or other occasion, wilfully and knowingly testifies, declares, deposes, or certifies falsely, in any material matter, or states in his testimony, declaration, deposition, affidavit or certificate, any material matter to be true which he knows to be false, is guilty of perjury.”

Therefore, to constitute perjury the false statement must be material. Section 44 of the Insurance Law (L. 1892, ch. 690) requires every corporation of the character of the Metropolitan Life Insurance Company annually on the 1st day of January or within two months thereafter, to “ file in the office of the Superintendent of Insurance a statement verified by the oath of at least two of the principal officers of such corporation, showing its condition on the 31st day of December then next preceding, which shall be in such form and shall contain such matters as the Superintendent of Insurance shall prescribe.” In pursuance of the authority thus conferred by the statute, the superintendent of insurance required the company to report a statement of loans secured by pledged stock or other collateral, and furnished an appropriate blank for the purpose. The answer to this inquiry was none. The report made in compliance with this requirement was verified by the relator to the effect that the “ foregoing statement, with the schedules and explanations herein contained, annexed or referred to are a full and correct exhibit of all the assets, liabilities, income and disbursements and of the condition and affairs of the said company on the said 31st day of December last and for the year ending on 251 that day, as the same were in fact and as the same are shown by the books of the company, and that the foregoing declarations and answers are made according to the best of their information, knowledge and belief respectively.”

1. The question whether in a prosecution for perjury the testimony, the falsity of which is charged, is material or not is a question of law for the court. Bishop’s Grim. Law, sec. 1039a; Power v. Price, 16 Wend. 450. That the statement made by the relator was material seems to me not open to doubt. Corporations are creatures of the State which incorporates them, and subject to its regulation and control except when legislation invades property rights. The legislature of the State declared that every corporation of the character of that before us should annually make a report to the superintendent of insurance of. its condition on the 31st day of December preceding, and that the report should be in such form and contain such matters as the superintendent should prescribe. It was, therefore, for the superintendent to determine what details of the condition of the company he required, and so far as his requirements related to the subject-matter committed to his discretion, to wit, the condition of the company, such requirement necessarily made the answer to the inquiry material. It cannot be tolerated that an officer of a corporation shall set up his judgment against the law to assert that a statement which the law requires him to make is not material. It is quite clear that information' as to the character of the investments made by the company and the amount of such investments respectively might be of great importance to enable the superintendent of insurance to intelligently pass upon the condition of the company. The fact that in this case all the loans were well secured is immaterial. In other cases, the loans might be unsafe However that may be, it is sufficient to say that the superintendent was entitled to true information, and that the legislature and insurance department, having declared such in 252 formation material, that declaration was conclusive on all officers under legislative control.

2. I am of opinion that the so-called “ year-end ” transactions, the details of which appear in the statement of facts, did not constitute in law a sale of the loans to Vermilye & Co. I differ from the learned judge who wrote for the majority of the Appellate Division in the opinion that Vermilye & Co. were not under any obligation to return the loan to the insurance company after the 1st of January. The letter written by the relator on December 30th, which accompanied the securities transferred to Vermilye & Co., informed them that “ For the accompanying package please send us your check for $1,492,815. We will reverse this transaction according to understanding on Tuesday, January 3rd, 1905. Very truly yours, John R. liegeman, President.” Vermilye & Co., having received the loan, necessarily assented to the terms prescribed by the relator in his letter, by which it was agreed that the transaction should be reversed on the 3rd of January, i. e., that Vermilye & Co. should return the loans to the insurance company and that the latter should repay the moneys they had received from Vermilye. This was an obligation binding on both parties. The payment on January 4th to Vermilye & Co. of interest on the money advanced by them is also of the utmost importance in characterizing this transaction. I think that all this did not constitute in law a transfer of the title of the loans to Vermilye & 'Co., but that the insurance company was still the owner. At least, the jury might find from the evidence that it was not a real transaction, but a colorable one only, being merely a device to enable the relator to make the return which he intended to make to the department. The question here is the same as that often presented in transactions assailed for usury, referring to which the court, through Judge Albeit, said (Quackenbos v. Sayer, 62 N. Y. 344) : “ The transaction must be judged by its real character, rather than by the 253 form and color which the parties have seen fit to give it. The shifts and devices of usurers to evade the statutes against usury, have taken every shape and form that the wit of man could devise, but none have been allowed to prevail.” I think shifts and devices to avoid a true report where the same is required by law must meet similar condemnation. The case of People ex rel. Thurman v. Ryan, 88 N. Y. 142, is not in point. There unquestionably the relator was the owner of the bonds and the bank was his creditor. There was no agreement as to the subsequent disposition of them or to cancel and rescind the purchase, nor did such a course seem to have been even contemplated.

3. Doubtless, to constitute perjury there must be criminal intent, but intent must be distinguished from motive and from ultimate obj'ect. As was said by Judge Werner in People v. Molineux, 168 N. Y. 264, 297, 16 N. Y. Crim. Rep. 120: “-In the popular mind intent and motive are not infrequently regarded as one and the same thing. In law there is a clear distinction between them. Motive is the moving power which impels to action for a definite result. Intent is the purpose to use a particular means to effect such result.” See, also, Burrill’s Law Dictionary, Yol. 1. “Motive is that which incites or stimulates a person to do an act. * * * Motive is never an essential element of a crime. A good motive does not prevent an act from being a crime.” Clark’s Grim. Law, sec. 14. There runs through the criminal law a distinction between offenses that are mala prohibita in which no intent to do wrong is necessary to constitute the offense-, and offenses that are mala in se in which a criminal intent is a necessary ingredient of the crime. While there are to be found both in judicial decisions and in text books elaborate discussions of what is a criminal intent, no attempt has been made to accurately define the term. Very possibly the attempt to make a definition so comprehensive as to be applicable to all cases would be futile, 254 and it has often been doubted whether the term “ intent ” is an accurate one. However this may be, it is very apparent that the innocence or criminality of the intent in a particular act generally depends on the knowledge or belief of the actor at the time. An honest and reasonable belief in the existence-of circumstances which, if true, would make the act for which the defendant is prosecuted innocent, would be a good defense. Thus, if a man killed another under such circumstances as gave proper and reasonable grounds for the belief that the person killed was about to take the life of the slayer, although the person killed was only playing a practical j oke, no crime would be committed. But if the facts and circumstances which the person believed to exist were not such as in law to justify his act,, then there would be no defense to the act. In other words, it is the knowledge or belief of the actor at the time that stamps identically the same intent as either criminal or innocent, for the intent to take life, unless under circumstances that the law regards as sufficient to justify the taking, is the criminal intent and the only criminal intent that can exist in case of murder (excepting where the killing is done in the commission of an independent felony). So, ordinarily, a criminal intent is an intent to do knowingly and wilfully that which is condemned as wrong by the law and common morality of the country, and if such an intent exists, it is neither justification nor excuse that the actor intended by its commission to accomplish some ultimate good. 1 Bishop’s Grim. Law, § 341.

To constitute perjury under our law it is not necessary to establish any other intent than that specified in the statute, for by its terms it is not sufficient that the affiant testifies as to what is false, but the testimony must be given willfully and knowingly, and the affiant must know that the testimony is false; if it be given in the honest belief that it is true, or by mistake or inadvertence, the case does not fall within the statute. Therefore, if a person willfully testifies to what he 255 knows to be false, this is the criminal intent and the only criminal intent that can exist in the crime. That the ultimate object to be attained by the perjury may be benefieient or indifferent in no way absolves or qualifies the criminality of the act. One may not commit a crime because he hopes or expects that good will come of it. It is no defense to a charge of intentionally committing an act prohibited by law even that the dictates of his religious belief require one to do the act. In Reynolds v. United States, 98 U. S. 145, the prisoner 'was indicted for having committed bigamy in Utah, and contended in his defense that polygamy was a duty enjoined on him by his religious belief. The court there said: “ This (defense) would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice ? ” In People v. Pierson, 176 N. Y. 201, this court upheld a conviction for misdemeanor where the father, acting under the dictates of his religious faith, failed to call a physician to attend his sick child. To the same effect, see Regina v. Morby, L. R. (8 Q. B. D.), 511,»and Regina v. Downes, 13 Cox Crim. Cas. 111. In that case the defendant, far from intending to injure his child, sought by his conduct to preserve it, and believed that his action would most conduce to that result.

There is nothing inconsistent with these views in People v. Wiman, 148 N. Y. 29. There this court affirmed an order reversing a conviction for forgery in the second degree on the ground that the trial court should have charged a request that to constitute the crime the acts must have been committed with a criminal intent. The court had charged the jury that there must be an intent to defraud. A casual reading of the opinion 256 might lead to an erroneous conception of the point decided. A careful examination, however, shows that the real difficulty in the case was the restricted meaning which the trial court gave to the term “ defraud,” and its refusal to charge that if the defendant believed that under the rules of law he had legal authority to make the check and indorse it as he did, the crime was not forgery. This appears from the conclusion of the opinion, where it is said: “ The charge as made, taken in connection with the remarks of the court and its refusal to charge as requested, was confusing, and rendered uncertain the question as to whether ‘ criminal intent ’ was or was not essential in order to constitute the crime.” Indeed, if the court after charging that a criminal intent was necessary to a conviction, had been asked by the jury to instruct them as to what would constitute a criminal intent, it is difficult to suggest any other answer the court could have given than that it was an intent to defraud.

If one may not violate the law with impunity in obedience to the requirements of his religious faith, much less can he justify such violation merely to escape personal inconvenience or annoyance. Therefore, the explanation offered by the relator that his act was impelled solely by the desire to escape the importunities of “ Wall street,”' if true (and the truth of this statement was plainly a question of fact), is entirely immaterial to the charge against him. The sole questions in this prosecution are: 1st. Were the facts stated by the relator in the report true or false. 2nd. If false, did the relator know them to be false when he verified the report. Though the statements made in the return may have been incorrect, if the relator made them in good faith either by inadvertence or mistake, or in the honest belief that the statements were true, then, of course, he did not commit the offense. We think the evidence contained in the affidavits was sufficient to present a question of fact on these issues.

257 The order of the Appellate Division should be reversed, that of the Special Term affirmed, and the relator remanded to custody.

The forgery ■ charge is based on section 515 of the Penal Code, which provides: “ A person, who, with intent to defraud or to conceal any larceny or misappropriation by any person of any money or property, either,

“ 1. Alters, erases, obliterates, or destroys an account, book of accounts, record, or writing, belonging to, or appertaining to the business of, a corporation, association, public office or officer, partnership, or individual; or,

“ 2. Makes a false entry in any such account or book of accounts; or,

“ 3. Willfully omits to make true entry of any material particular in any such account or book of accounts, made, written, or kept by him or under his direction;

“ Is guilty of forgery in the third degree.”

The-evidence contained in the depositions did not tend to show the commission of an offense under this section. To constitute that offense the false entries or alterations must be made “ with intent to defraud or to conceal any larceny or misappropriation by any person of any money or property.” The entries of which complaint is made at most simply purport to. ■show that the loans were made on the date of such entries. It may be that these entries tended to deceive any one examining the company’s books, but they could in no way operate to defraud the company or any one else. Nor had there been any larceny or misappropriation which the entries could serve to conceal or cover up.

The order of the Appellate Division discharging the relator on this charge should be affirmed.