92 Cal. 648 | Cal. | 1892
Appellant was tried and convicted upon an information charging him with perjury com
To that information the defendant pleaded not guilty. A trial was had which resulted in a verdict of guilty. Defendant made a motion in arrest of judgment upon all the statutory grounds. The motion was denied, as was also a motion for a new trial, and the court sentenced the defendant to imprisonment in the state prison for the term of eighteen months. This appeal is from the judgment, and order denying the motion for a new trial.
The first point raised by counsel for appellant is, that "the paper or certificate about which appellant is charged with having given false testimony is in the Chinese language. It was capable of translation into English. But instead of translating it, the information contains a photographic copy, without any allegation of its tenor in English.”
To one not versed in any language other than the English language, the “ certain document, instrument, paper, and lottery ticket” alleged to be in the words and figures set out in the complaint would be wholly unintelligible. An indictment or information must contain “a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as-to enable a person of common understanding to know
Who can determine that question without first knowing all that it contains? Whether the unknown matter is a matter of substance, or of form only, cannot be determined until it ceases to be unknown. The allegation of the information is, that on the trial at which the appellant is alleged to have committed perjury “ it then and there became and was material on said trial, action, and proceeding to know whether or not the said defendant, Ah Sum, did furnish, sell, and transfer to one John Ferrin, in the city of Oakland, county of Alameda, state of California, a certain document, instrument, paper, and lottery ticket in the words and figures following, to wit,” which are said to be words and figures in the Chinese language, — certainly not in English.
The section of the Penal Code under which the defendant was prosecuted and tried in the police court reads as follows: “Every person who sells, gives, or in any manner whatever furnishes or transfers to or for any other person any ticket, chance, share, or interest,-
The thing which the- defendant is- alleged to have sold is alleged to have consisted of certain words and figures set out in the information. On examination of the matter set out as words and figures, we discover no words, and but few figures; nothing to indicate that the thing alleged to have been sold by the defendant to John Perrin was a lottery ticket. A translation of it might have shown that it was not. And so long as we do not know what it was, we have no right to assume that the selling of it constituted a misdemeanor. If we- strike - out of the information everything except what is expressed in English, there will remain no allegation of the sale of anything by the defendant to anybody.
The court erred in overruling the motion in arrest of judgment, and for that error the judgment and order appealed from are reversed.
Judgment and order reversed.
De Haven, J., McFarland, J., and Harrison, J., concurred.