Held, that the word 'compulsion,' as there used, means merely compulsion exercised through the process of the courts, or through laws acting directly on the party, and has no reference whatever to an indirect or argumentative pressure, such as is claimed is exerted by Act 1869 (Laws 1869, c. 678), declaring that on a criminal trial the accused shall at his own request, but not otherwise, be deemed a competent witness against himself. People v. Courtney, 94 N.Y. 490, 493.'

The inquiry made in count 1 of the indictment would have a material bearing upon the credibility of the statement and testimony of the petitioner. State v. Coella, 3 Wash. 99, 28 P. 28; State v. Champoux, 33 Wash. 339, 74 P. 557; State v. Miller, 26 R.I. 282, 58 A. 882, 3 Ann.Cas. 943; State v. Park, 57 Kan. 431, 46 P. 713; U.S. v. Landsberg (C.C.) 23 F. 585; State v. Moran, 216 Mo. 550, 115 S.W. 1126; People v. Courtney, 94 N.Y. 490; Lang v. U.S., 133 F. 201, 66 C.C.A. 255. The demurrer is overruled as to count 1 of the indictment and is sustained as to count 2.

In this State, materiality is a question of fact for the jury (People v Clemente, 285 App. Div. 258, affd no opn 309 N.Y. 890; see People v Ianniello, 36 N.Y.2d 137, 144). To be material, the statement need not prove directly the fact in issue; it is sufficient if it is "circumstantially material or tends to support and give credit to the witness in respect to the main fact" (Wood v People, 59 N.Y. 117, 123). Thus a statement that "reflect[s] on the matter under consideration" (People v Stanard, 42 N.Y.2d 74, 80), even if only as to the witness' credibility (see People v Samuels, 284 N.Y. 410, 414; People v Courtney, 94 N.Y. 490), is material for purposes of supporting a perjury charge. Put another way, the test of materiality may be said to be "whether the false testimony has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation" (United States v Stone, 429 F.2d 138, 140; United States v Carson, 464 F.2d 424, cert den 409 U.S. 949). Under any formulation of the test, the materiality of defendant's statement is manifest.

The appellant, as noted, may not prevail on his claim that there was an absence of proof of an illegal purpose for the meeting, and that his false denial of ever attending the meeting is thus immaterial to a Grand Jury investigation of police corruption. Materiality is an essential element of the crime of perjury in the first degree (see People v Teal, 196 N.Y. 372, 376; People ex rel. Hegeman v Corrigan, 195 N.Y. 1, 9; People v Courtney, 94 N.Y. 490, 494; Wood v People, 59 N.Y. 117, 121-122; cf. People v Ianniello, 36 N.Y.2d 137, 143); false swearing, to be material, must reflect on the matter under consideration during the action or proceeding in which it is made. As stated in Wood v People (supra, p 123): "It is not necessary that the false statements should tend directly to prove the issue in order to sustain an indictment. If the matter falsely sworn to is circumstantially material or tends to support and give credit to the witness in respect to the main fact, it is perjury." Under the facts in this case the appellant falsely denied, during a Grand Jury investigation into police corruption, that he met surreptitiously with three other police officers and a known gambler in the basement of the home of the gambler.

Up to that time under the common law of England, which we adopted following the American Revolution, a defendant had no right to testify in his own behalf. (People v Courtney, 94 N.Y. 490); People ex rel Woronoff v Mallon, 222 N.Y. 456 [ 119 N.E. 102, 4 ALR 463 (1918)]). Section 295-1 on the other hand is contained in chapter III-A entitled 'Simplified Indictments,' all of the sections of which relate to form and procedure.

Up to that time under the common law of England, which we adopted following the American Revolution, a defendant had no right to testify in his own behalf. ( People v. Courtney, 94 N.Y. 490; People ex rel. Woronoff v. Mallon, 222 N.Y. 456.) Section 295-l on the other hand, is contained in chapter III-A entitled "Simplified Indictments," all of the sections of which relate to form and procedure. It is a sound rule of construction that in the absence of express language, it will be presumed that the Legislature did not intend to defeat the main purpose and object of another legislative enactment relating to the same subject ( People ex rel. Wood v. Lacombe, 99 N.Y. 43), nor to make a radical change in long-established rules.

(Penal Law, § 1633, as amd. by L. 1892, ch. 662.) The question of materiality would have been one of law. ( People ex rel. Hegeman v. Corrigan, 195 N.Y. 1.) False testimony going to the credit of the witness has been held to be material. ( People v. Courtney, 94 N.Y. 490; Wood v. People, 59 N.Y. 117. ) The testimony here charged to be false relates to the credibility of the witness. The Court of Special Sessions would have been without jurisdiction.

Section 393 of the Code of Criminal Procedure permits a defendant to testify in his own behalf, and in this respect modifies the law as it was prior to 1869. ( People v. Courtney, 94 N.Y. 490.) "But," says the section, "his neglect or refusal to testify does not create any presumption against him." I know of nothing to prevent the legislature from wiping out this last clause and thereby permitting all the natural inferences and presumptions of fact that spring out of the failure of the defendant to explain away damaging and inculpating testimony.

To the same effect is the rule laid down in Wood v. The People, 59 N.Y. 117; People v. Barry, 63 Cal. 62; State v. Sutton, 147 Ind. 158. In People v. Courtney, 94 N.Y. 490, Andrews, J., in delivering the opinion of the court, said: "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 the witness.

It may be difficult to prove that his thought or his memory or his opinion was otherwise, but that difficulty has been successfully met and overcome in this case. ( Regina v. Schlesinger, 10 Ad. El. [N.R.] 670; People v. Robertson, 3 Wheeler's Cr. Cas. 183; State v. Henderson, 90 Ind. 408; State v. Terry, 30 Mo. 368; State v. Knox, 61 N.C. 312; Com. v. Grant, 116 Mass. 17; Com. v. Brady, 5 Gray, 78; Wilson v. Nations, 5 Yerger, 211; People v. Courtney, 94 N.Y. 490; Bishop's Crim. Law, sec. 878; 3 Greenleaf's Ev. 197; Roscoe's Cr. Ev. 759, 814.) The general doctrine to be found in these authorities warrants the conclusion that a witness who swears falsely, willfully and corruptly to the effect that he does not remember certain material facts involved in the issue on trial, when in truth they are within his knowledge and recollection, is guilty of perjury.