Opinion
Argued October 18, 1954
Decided December 31, 1954
Appeal from the Supreme Court, Appellate Division, Second Department, BODINE, J.
Archibald Palmer for appellant.
Edward S. Silver, District Attorney ( Aaron E. Koota, Julius Helfand and Jerome C. Ditore of counsel), for respondent.
Defendant was convicted of the crime of perjury in the first degree for testifying falsely before a Grand Jury. The People established beyond a reasonable doubt that defendant had given false answers in a questionnaire which he had submitted to the Grand Jury.
The questionnaire had been prepared by the District Attorney and contained sixty-eight numbered answers. Before a charge of perjury is predicated upon the answers in such a questionnaire, the questions should be clear, simple, direct and unambiguous. They should be phrased so that a person of average intelligence may determine exactly what information is sought by each question, without the introduction of possible confusion by somewhat similar or overlapping queries in other parts of the questionnaire. Questions Nos. 42 and 66, to which the defendant made the answers which resulted in his conviction, were sufficiently clear and unambiguous in phraseology.
At the perjury trial the prosecution employed a chart at the top of which appeared the legend "It is claimed that the defendant failed to list", and underneath this were listed twenty items, together with their alleged value. When this chart was first presented, the names of these twenty items were concealed by paper covering strips, which strips were removed one by one by the prosecuting attorney as testimony was elicited to prove that defendant had possessed the items.
We disapprove of this dramatic use of the chart, since it might lead the jury to believe that defendant's possession of the items had been established conclusively; however, it cannot be said, in view of all of the circumstances at this trial, that the defendant was unduly prejudiced thereby, or that he failed to receive a fair trial. (Cf. Code Crim. Pro, § 542.)
The judgment should be affirmed.
LEWIS, Ch. J., CONWAY, DESMOND, DYE, FULD, FROESSEL and VAN VOORHIS, JJ., concur.
Judgment affirmed.