70 P. 84 | Cal. | 1902
The defendant was convicted of perjury, and appeals from the judgment. No evidence is brought up, and the defendant relies for a reversal solely on the alleged insufficiency of the indictment.
It is true that the indictment is not well constructed, and would not be held good in jurisdictions where there is not tolerated such want of precision and particularity of statement in pleadings as our Penal Code allows. Nevertheless, we think that under the provisions of sections
It is contended that in this indictment there is no averment that an oath had been administered to appellant before he gave the alleged false testimony. The averment on this subject is, that he gave the testimony, "having taken an oath then and there before the Honorable Albert C. Parker, a justice of the peace in and for Stockton Township, in San Joaquin County, California, duly elected, qualified and acting, and being entitled under the laws of the state of California to administer oaths in such cases, matters, and proceedings." This character of averment is certainly not to be commended. A direct statement that an oath was administered to the witness by the justice would have been in much better form. But sections
There is not any substantial merit in the position that there is no sufficient averment of the court in which the false testimony is alleged to have been given, and no sufficient averment that such testimony was given in a legal proceeding in which perjury could be committed. The averments on these points are that the false statements were made "in open court, and during the pendency and as a part of the evidence in a criminal case then and there pending before the said Honorable Albert C. Parker, entitled `The People of the State of California v. Arthur Ennis, defendant,' upon a criminal complaint charging the said Arthur Ennis with petit larceny." These averments would have been, no doubt, more apt if it had been stated therein that the said case of People v. Ennis was pending in a "justice's court" instead of "before. . . . Parker," who had been averred to be the justice of the peace; and that said case was on trial as well as "pending." But the language used in the averments was *266 clearly sufficient to fully inform appellant what was meant, — namely, that he had made false statements which were "part of the evidence" in the case of People v. Ennis, in the justice's court over which Parker (justice) presided, where Ennis was being tried for petit larceny.
The averment that the statements were "material to the issues tendered in said cause" was a sufficient averment of the materiality of the false testimony; it was not necessary to aver "how the false testimony was material." (People v. De Carlo,
There was a sufficient averment that appellant testified falsely. The averment in the first part of the indictment that he did "willfully, unlawfully, feloniously, and contrary to said oath," make certain statements, seems to be all that is required by section
By the indictment in the case at bar the appellant was fully informed of the charge against him, and none of the alleged defects of the indictment tended to his prejudice as to any of his substantial rights; and the case is one to which the provision of section
The judgment is affirmed.
Temple, J., and Beatty, C.J., concurred.