Eastwood, Bigelow and Freund. The opinion of the court was delivered by Bigelow, J.A.D.
The appellant was convicted of false swearing. Indictment and conviction were based on the following passage, which is taken from his testimony given before the grand jury of Camden County. The Attorney General, showing appellant a photograph that has been proved to be a photograph of Benjamin Anyzcek, asked:
"How about this one? Do you know him? No, sir.
"This one? (Indicating the same or another photograph of the same man.) Yes. He was about three years in the Navy.
"Who is he? Eddie Anyzcek.
"His name isn't Eddie, is it? I don't know. It's Anyzcek.
"His right name is Ben, isn't it? Ben, I mean.
"What is his business? He just got out of the Navy.
"Can we just forget about the Army and Navy? You want to inject that into every question. What has he been doing since he got out? I don't know.
"Don't you know he tended bar at Klosterman's? Yes, sir, I know he tended bar there."
The first count of the indictment charges that appellant falsely swore that he did not know Benjamin Anyzcek and could not identify a photograph of him, and that he also swore falsely to the contrary. The second count charges that appellant falsely swore that he did not know what business Anyzcek was engaged in, and that he also falsely swore that he did know. The draftsman of the indictment seems to have intended to frame it under R.S. 2:157-5 which permits an allegation that one or the other of two contradictory statements is false, without alleging which statement is false. But the indictment, as we have pointed out, charges that each of the opposite statements was false. This defect in the indictment did not prejudice the defendant on the merits of the case and is not ground for reversal.
Upon the trial, the evidence was clear that at the time appellant testified before the grand jury, he was acquainted with Anyzcek and ...