The defendant was convicted of the crime of perjury, in the County of Tulare, аnd brings this appeal from the judgment of conviction, and also from the order dеnying his motion for a new trial.
It appears that two brothers, named Michael аnd James Maher, were engaged, as partners, in raising sheep near Tip-ton, Tulare County, in the year 1876. That in the month of July of that year they went with their sheep tо the mountains, and that both of them were supposed to have been afterward killed. On the 7th of March, 1878, one J. J. Kerrick was indicted by the grand jury of Tulare County for thе murder of Michael Maher. The indictment in that case charged Kerrick with having murdered Michael on or about the 20th of August, 1876. The defendant Green was a witness for Kеrrick on the trial of the charge against him, and the indictment in the present case charges that Green, on that occasion, willfully and falsely testified, amоng other things, that he saw James
Uрon the trial of this action, the prosecution introduced, among other evidence, the reporter’s notes of the testimony of Green, given on the triаl of the People v. Kerrick. The jury found that the testimony that lie there gave was false, and rendered a verdict of guilty. It is claimed here, on behalf of the prisoner, that the testimony so given by him was not material to the issue in the prosecution against Kerrick, аnd this point is .the only ground of the present appeal!
We think the point not wеll taken. The indictment against Kerrick, as has been observed, charged him with having murdеred Michael Maher on or about the 20th of August, 1876. In that prosecution it was, of course, essential for the people to prove that Michael Mаher was in fact dead, and that he came to his death by means of some act of Kerrick. In order to controvert the charges in the indictment, Green went upon the stand and testified in Korrick’s behalf, to the effect that subsequent to the alleged murder, to wit, on the 29th or 30th of August, he saw James Malicr at his (Green’s) house, and also saw him at about the same time herding sheep in the vicinity of Tipton; and lie further testified as follows: “The 29th or 30th of August was the last time I saw James Maher until I saw him at my plaсe on the 29th of August. I was coming to Visalia to work, and McDonald ivas with me. lie says, ‘ thаt’s the Maher boys.’ Says I ' which is the one they call Jim ? ’ He says, ‘ the largest one.’ ”
If by this is meant that the witness saw Michael Maher on the 29th or 30th of August with his brother James, the rnateri
Judgment and order affirmed.
Morrison, C. J., and McKinstry, J., concurred.