[322]*322
By the Court,
King, J. —
It is contended on behalf of the prisoner that there was a variance between the proof offered against him on the trial and the charge against him in the indictment in this.
1. That the indictment charges him writh perjury upon an examination where Ee had been previously sworn truly to answer questions, which charge is attempted to be supported by evidence that he falsely swore that the contents of an affidavit produced by him were true: and
2. That he is charged with perjury upon his examination as surety for Thompson, committed on the complaint of McDonald in default of $500, bail, which charge is attempted to be supported by evidence that he falsely swore upon his examination as surety for Thompson, committed on complaint of Sayre in default of $3000, bail.
Upon examining the indictment, it will be perceived that it charges that the plaintiff in error, Smith, was in due manner sworn to make true answers to such questions as should be put to him, touching his qualifications and competency to be and become bail for the said Samuel Thompson; that being so sworn as aforesaid, he made his affidavit in writing and did upon his oath aforesaid feloniously, &c., depose and say.
This differs from the usual form, where it is intended to allege perjury upon what is usually denominated an affidavit, where the oath is administered after the affidavit has been written and signed by the affiant, and is to the effect that the contents of the affidavit so subscribed are true.
The usual allegation being, that the defendant was in due form of law sworn and, upon his oath aforesaid, did depose, &c., and make affidavit in writing; or that the said defendant did produce to the said court a certain affidavit in writing of him, the said defendant, and then and there, &c., &c., was duly sworn and took his corporal oath, &c., &c., concerning the truth of the matters contained in said affidavit. (Chitty Crim. L. 319, 329.)
Nor is the charge such as is made where a party is indicted for false swearing upon his examination in justifying bail, as in [323]*323those cases the averment that the party made affidavit in writing is omitted. (Chitty Cr. L. 331, 332.)
The charge as made in the indictment in this case is inconsistent in its different parts, if the word affidavit is to be taken in the usual acceptation of that term; and the allegation that he made an affidavit must be rejected as surplusage, or, if retained, it must be construed by the terms of the oath previously averred to have been taken, as meaning deposition.
In support of this charge, which imports that the party having been previously sworti, did, after taking the oath in his examination commit perjury, it seems to me improper to introduce evidence that the party was sworn to the truth of an affidavit presented to him, no examination taking place subsequent to the oath and therefore no violation of the oath appearing, which he is stated to have taken.
The difference between examinations and depositions is recognized in The People v. Restell (3 Hill, 304.) There, a deposition having been made and the witness sworn to its truth, the accused party was afforded the opportunity of putting questions to the witness, but, says the court, had she done so, and had the witness given false answers, she could not have been convicted of perjury, as she had not been sworn to answer questions at all.
It seems equally obvious that, in this case, the defendant could not be convicted on the indictment against him, without proving that he was sworn to make true answers to the questions that should be put to him, and did answer falsely after having been sworn. Such evidence was not produced; no proof was offered that he was first sworn and then interrogated. The only oath proved was, “ that the answers to the foregoing interrogatories by him subscribed are each and every of them true.” The deposition subscribed by the defendant being in the form of question and answer. Another question is presented, however, under this indictment Under the statute of 23 Geo. II, c. 11, which was reenacted by our revised laws, it is sufficient, in cases of perjury, to set forth the substance of the of-fence, the name of the court, a simple averment of the court’s [324]*324authority to administer the oath, and proper averments of the falsity of the defendant’s assertions. (2 Chitty’s Cr. 507; People v. Phelps, 5 Wend. 9; People v. Warner, 271.) And in these latter cases, it was held that under the statute of jeofails in criminal cases, contained in the revised statutes, the same rules would still be applicable to indictments for perjury as under the revised laws, though the provisions of those laws were not reenacted in the revised statutes.
It being then sufficient to charge that the party was duly sworn, can the allegation of what he was sworn to do, be rejected as surplusage? It is laid down that every fact and circumstance which is not a necessary ingredient in the offence may be rejected as surplusage. (Archb. Crim. Plea, 42.) But even under the foregoing statute, if the prosecutor chooses to state the offence with greater particularity than is required, he is bound by the statement and must prove it as laid. (5 T. R. 311; Rex v. Dowlin.)
It is, however, of the very substance of the offence, it seems to me, what the oath was which was administered to the accused, and that having stated that a particular oath was administered, the prosecutor should not be allowed to prove one different in its nature. Although it is equally perjury to swear to a false affidavit, or to make a false answer, having been sworn to make true answers, it is not proving the same perjury; and the one offence only being charged, it seems at variance with the rules upon which indictments are framed and supported by evidence, to permit the charge to be thus modified to suit the evidence as it may appear. The indictment only charges perjury upon an examination, the accused having been previously sworn. The subsequent averment that the accused upon such oath made his affidavit in writing is repugnant to the preceding statement, and though the latter averment may be rejected as surplusage, I do not think the former can.
It is, secondly, urged on behalf of the plaintiff in error, that the proof varied from the charge in this, that the charge was of perjury upon occasion of the prisoner’s offer to become hail for Thompson committed on McDonald’s complaint in default [325]*325of $500 bail. The evidence was of perjury committed upon his examination as bail for Thompson committed on the complaint of Sayre and others in default of $3000 bail.
The indictment states that Thompson was committed upon McDonald’s complaint in default of $500 bail.
That he was committed by McGrath upon divers charges of felony (no averment being made that the amount of bail on these charges was fixed, or that the committing magistrate could bail in those cases).
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[322]*322
By the Court,
King, J. —
It is contended on behalf of the prisoner that there was a variance between the proof offered against him on the trial and the charge against him in the indictment in this.
1. That the indictment charges him writh perjury upon an examination where Ee had been previously sworn truly to answer questions, which charge is attempted to be supported by evidence that he falsely swore that the contents of an affidavit produced by him were true: and
2. That he is charged with perjury upon his examination as surety for Thompson, committed on the complaint of McDonald in default of $500, bail, which charge is attempted to be supported by evidence that he falsely swore upon his examination as surety for Thompson, committed on complaint of Sayre in default of $3000, bail.
Upon examining the indictment, it will be perceived that it charges that the plaintiff in error, Smith, was in due manner sworn to make true answers to such questions as should be put to him, touching his qualifications and competency to be and become bail for the said Samuel Thompson; that being so sworn as aforesaid, he made his affidavit in writing and did upon his oath aforesaid feloniously, &c., depose and say.
This differs from the usual form, where it is intended to allege perjury upon what is usually denominated an affidavit, where the oath is administered after the affidavit has been written and signed by the affiant, and is to the effect that the contents of the affidavit so subscribed are true.
The usual allegation being, that the defendant was in due form of law sworn and, upon his oath aforesaid, did depose, &c., and make affidavit in writing; or that the said defendant did produce to the said court a certain affidavit in writing of him, the said defendant, and then and there, &c., &c., was duly sworn and took his corporal oath, &c., &c., concerning the truth of the matters contained in said affidavit. (Chitty Crim. L. 319, 329.)
Nor is the charge such as is made where a party is indicted for false swearing upon his examination in justifying bail, as in [323]*323those cases the averment that the party made affidavit in writing is omitted. (Chitty Cr. L. 331, 332.)
The charge as made in the indictment in this case is inconsistent in its different parts, if the word affidavit is to be taken in the usual acceptation of that term; and the allegation that he made an affidavit must be rejected as surplusage, or, if retained, it must be construed by the terms of the oath previously averred to have been taken, as meaning deposition.
In support of this charge, which imports that the party having been previously sworti, did, after taking the oath in his examination commit perjury, it seems to me improper to introduce evidence that the party was sworn to the truth of an affidavit presented to him, no examination taking place subsequent to the oath and therefore no violation of the oath appearing, which he is stated to have taken.
The difference between examinations and depositions is recognized in The People v. Restell (3 Hill, 304.) There, a deposition having been made and the witness sworn to its truth, the accused party was afforded the opportunity of putting questions to the witness, but, says the court, had she done so, and had the witness given false answers, she could not have been convicted of perjury, as she had not been sworn to answer questions at all.
It seems equally obvious that, in this case, the defendant could not be convicted on the indictment against him, without proving that he was sworn to make true answers to the questions that should be put to him, and did answer falsely after having been sworn. Such evidence was not produced; no proof was offered that he was first sworn and then interrogated. The only oath proved was, “ that the answers to the foregoing interrogatories by him subscribed are each and every of them true.” The deposition subscribed by the defendant being in the form of question and answer. Another question is presented, however, under this indictment Under the statute of 23 Geo. II, c. 11, which was reenacted by our revised laws, it is sufficient, in cases of perjury, to set forth the substance of the of-fence, the name of the court, a simple averment of the court’s [324]*324authority to administer the oath, and proper averments of the falsity of the defendant’s assertions. (2 Chitty’s Cr. 507; People v. Phelps, 5 Wend. 9; People v. Warner, 271.) And in these latter cases, it was held that under the statute of jeofails in criminal cases, contained in the revised statutes, the same rules would still be applicable to indictments for perjury as under the revised laws, though the provisions of those laws were not reenacted in the revised statutes.
It being then sufficient to charge that the party was duly sworn, can the allegation of what he was sworn to do, be rejected as surplusage? It is laid down that every fact and circumstance which is not a necessary ingredient in the offence may be rejected as surplusage. (Archb. Crim. Plea, 42.) But even under the foregoing statute, if the prosecutor chooses to state the offence with greater particularity than is required, he is bound by the statement and must prove it as laid. (5 T. R. 311; Rex v. Dowlin.)
It is, however, of the very substance of the offence, it seems to me, what the oath was which was administered to the accused, and that having stated that a particular oath was administered, the prosecutor should not be allowed to prove one different in its nature. Although it is equally perjury to swear to a false affidavit, or to make a false answer, having been sworn to make true answers, it is not proving the same perjury; and the one offence only being charged, it seems at variance with the rules upon which indictments are framed and supported by evidence, to permit the charge to be thus modified to suit the evidence as it may appear. The indictment only charges perjury upon an examination, the accused having been previously sworn. The subsequent averment that the accused upon such oath made his affidavit in writing is repugnant to the preceding statement, and though the latter averment may be rejected as surplusage, I do not think the former can.
It is, secondly, urged on behalf of the plaintiff in error, that the proof varied from the charge in this, that the charge was of perjury upon occasion of the prisoner’s offer to become hail for Thompson committed on McDonald’s complaint in default [325]*325of $500 bail. The evidence was of perjury committed upon his examination as bail for Thompson committed on the complaint of Sayre and others in default of $3000 bail.
The indictment states that Thompson was committed upon McDonald’s complaint in default of $500 bail.
That he was committed by McGrath upon divers charges of felony (no averment being made that the amount of bail on these charges was fixed, or that the committing magistrate could bail in those cases).
That Smith offered himself as bail that Thompson should appear at the next court of general sessions, &c., &c., and thereupon was sworn, McGrath having competent authority to administer the oath, that it was material for the police justice to know the amount of Smith’s property, he swore it was a certain amount, which assertion of his was false.
It is contended on the part of the people, that the occasion of administering the oath is sufficiently indicated to be the offer of Smith to become bail for Thompson on all the charges of felony against him, and that the jurisdiction of the officer having been averred and the materiality of the matters deposed to by the prisoner, it was matter of evidence and not matter to be pleaded, how the evidence of the defendant was material, and upon what different charges of felony Thompson was committed.
It is first to be observed, that although at the trial a commitment of Thompson on the complaint of McDonald was produced, the only oath which it appeared the prisoner took was upon an affidavit or deposition in the matter of the people of the state of New York on complaint of Lewis A. Sayre and others against Samuel Thomson. If the title of the deposition is to determine in what proceeding it was taken, or if the title is to be disregarded and the caption of the deposition is to determine the proceeding in which it was taken, then it was upon Smith’s offer to become surety in $3000 for Samuel Thomson, charged on the oath of Lewis A. Sayre with grand larceny.
Nothing in the deposition indicated that the prisoner offered [326]*326himself as bail for Thomson on the charge made by McDonald; and therefore the indictment, so far as it charges that to have heel the occasion on which he committed perjury, is unsustained by evidence.
But it is insisted that it is also stated in the indictment, that Thomson was committed on divers charges of felony, and Smith offered himself as bail on all those charges, that it is therefore competent to offer evidence of other commitments than the one specifically stated in the indictment, and of Smith’s deposition upon his offer to become bail for Thompson on those charges. Admitting this to be so, in order to sustain the verdict after conviction, though the practice of making such general charges is not to be commended and. is not in accordance with the rules usually governing criminal proceedings, yet even then the evidence does not appear admissible. It is true five commitments, .on charges of felony preferred by different persons against Thompson, were produced, and one commitment on a charge of petit larceny, not, according to the revised statutes, a felony; but .among these commitments, there was none on the joint complaint of Lewis A. Sayre and others, and none on the sole complaint of Lewis A. Sayre in which the bail required was in the sum of $300.
The title of the deposition is, “ In the matter of The People of the state of New York on the complaint of Lewis A. Sayre and others.” This, according to usual acceptation, would mean the joint complaint of Lewis A. Sayre and others, and would indicate but one complaint. .Rejecting the averment on whose complaint the people proceeded against Thompson, the caption of the deposition shows it to have been taken in a case where Lewis A. Sayre alone complained and the bail offered was $3000. Upon the commitment proved on Sayre’s complaint, ■~fhe bail required was $500 only.
To conform the evidence to the charge contained in t’.e indictment in all its latitude, we must change the title of the deposition so that it shall read, “ In the matter of the People on the complaints of Sayre and others. against Thompson,” we must change the caption so as to read, “ Interrogatories to [327]*327be administered to Smith who offers himself as surety for Thompson in the sum of $2500 (the aggregate amount of bail required on all the commitments for felony produced), charged on the oaths of Lewis A. Sayre and others with divers grand larcenies;” and we must omit the commitment of Thompson for petit larceny, which increasing the amount of bail so far increased the materiality of Smith’s answers as to his property. As the proof now stands, it seems to me not to support any charge in the indictment.
The result is, that the evidence'on the trial varying from the charge in the indictment, the prisoner has been wrongfully convicted and is entitled to a new trial. • The judgment in the courf below must therefore be reversed, and a new trial ordered.
Judgment reversed.