Dеfendant was indicted, tried, and convicted of the crime of perjury. He appeals from the judgment and from the order denying his motion for a new trial.
The indictment charged that defendant falsely testified that he “never went to the Marin County bank and told said bank not to loan to J. S. McCue money to meet the obligation that said J. S. McCue would be owing to said William B. Bradbury on the 22nd day of October, 1904, that he the said William B. Bradbury never told the said Marin County bank not to loan any money to J. S. McCue.” The averment of the falsity of these declаrations is charged as follows, omitting unnecessary matter: “That the said William B. Bradbury did tell said Marin County bank prior to said 22nd day of October, 1904, not to loan any money to said J. S. McCue.”
A demurrer was interposed to this indictment, and under this demurrer it is argued that the indictment is insufficient in failing tо conform to subdivision 3 of section 952 of the Penal Code; that is to say, that it does not allege the particular circumstances which here are necessary to constitute a complete offense. That where necessary to show a cоmplete offense, the particular circumstances must be pleaded, is, of course, well settled. It is sufficient to refer to such cases as
People
v.
Lee,
While in its more general use the verb “to tell” does import oral communication, yet, by well-accepted usage, it may be employed where the communication is by writing. “Tell: to recount, orally or in writing.” (Standard Dictionary.) No more force inheres to the objection that the pleader was in error in not making more specific by innuendo the averment of the perjurious matter that defendant “told the Marin County bank.” • It is always a good pleading to allege the perjury in the exact language or in the substance of the language employed. So far, therefore, as concerns the mere setting forth of the perjurious matter, no demurrer for uncertainty can be taken, since the response of the pleader is that such was the language actually used. Moreover, it is a common practice to address a corporation by its name and not by direct reference to any particular officer of it. A letter addressed to the Farmers and Merchants’ Bank “telling” them to do so and so, would be the ordinary form of a business communication, and if a witness falsely testified that he did not tell the Farmers and Merchants’ Bank so and so, the pleader, in setting forth this perjurious matter, would be required only to state the fact as it was, that the witness said that he did not tell the Fаrmers and Merchants’ Bank. Upon neither of these matters which we have so far considered can the demurrer be held well taken.
But there is another well-recognized principle applicable to the pleading of a perjury. This principle hаs to do, not with the averment of the perjurious matter which we have just considered, but with the assignment of perjury. The assignment of perjury consists of an express contradiction of the party’s statement on oath, when necessary, explained by innuendo. That рrinciple is this, that if the statement charged as false is of a particular fact, it is sufficient in the averment to negative that fact. But if the statement is general, and the existence of a particular fact makes it false, that fact must be alleged positively. It is in this latter class of cases that the necessity of an averment by innuendo arises. “If the statement be general and the assignment as general in the negative—as if a man swear that he has paid all his debts,
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and the assignment be that that he has not paid all his dеbts— this would be bad for want of certainty, as it would afford the defendant no information of what was intended to be proved; but the assignment must show in what respect, or in what instances, he has not done so.” (2 Archibold’s Crim. Prac. & Plead., p. 1737;
United States
v.
Morgan,
Morris, (Iowa) 341,
The contention that the indictment is defective in not alleging that the defendant was sworn “to testify truly”
(People
v.
Simpton,
The indictment charged that the oath was administered “by F. S. Holland, who was then and there the duly appointed, qualified and acting deputy clerk of the superior court of the county of Marin, state of California.” It is urged that this allegation fails to show that the oath was administered by a person authorized so to do. The argument is that there is no such officer known as “clerk of the superior court,” and, *814 therefоre, no such officer as a “deputy clerk of the superior court.” The constitution, however, itself declares that the county clerks shall be ex officio clerks of the courts of record in and for their respective counties or cities and counties. (Const., аrt. VI, sec. 14.) Thus, the office of clerk of the superior court is created by law, and it needs no citation of authority to the effect that in such matters a deputy may act for his principal.
The court instructed the jury that before it could find the defendant guilty of рerjury it must find “that he knowingly and willfully testified falsely in the manner and form charged in the indictment in this ease, excepting in one particular, which I will come to later.” It is said that no subsequent instruction of the court explained the meaning of the italicized language, and that the effect of the court’s omission in this regard was inevitably to leаve the minds of the jurors in a state of confusion. The answers to this objection are threefold : 1. It appears by the record that the instruction was one given at the request of the defendant, and, therefore, he may not complain of it; 2. If the result of the court’s failure was to leave the minds of the jurors in a confused state, such confusion, under the circumstances, made for the benefit and not for the injury of the defendant; and 3. Prom the later instructions of the court the precise matter to which the exception has reference is made clearly to appear. That matter consisted of certain evidence alleged in the indictment to have been given by Bradbury which the court properly, as matter of law, determined was not material, and as to which the court instructed the jury that the defendant would not be guilty of perjury even if he had testified falsely concerning it.
The court instructed the jury that before the defendant could be convicted of the crime of perjury, there must be established beyond a reasonable doubt and to a moral certainty by the testimony of, at least, two witnesses, or by the testimony of one witness and corroborating circumstances, certain facts amongst these, “that such testimony so alleged to be false was material to the issue then before the court.” In another part of its charge the court declared to the jury, “whether the testimony alleged to be false was or was not material is a question of law which is for the court to deter
*815
mine and not the jury. The question of the materiality of evidence, no matter when or how it may arise, is always one of law for the court and not of fact for the jury.” This latter instruction was unquestionably sound in point of law.
(People
v.
Lem You,
The evidence was sufficient to support the judgment. The materiality of the perjurious evidence is established by
McCue
v.
Bradbury,
No other points presented by appellant merit particular mention.
*816 For the foregoing reasons the judgment and order appealed from are affirmed.
Lorigan, J., Shaw, J., Melvin, J., and Sloss, J., concurred.
Rehearing denied.