People v. Jones
55 P. 992
Cal.
1899
Check Treatment
CHIPMAN, C.

Indiсtment for perjury, to which a demurrer was sustained. Plaintiff appeals. It was averred in the indictment that a verified complaint was filed in the superior court of -San Diego county wherein one ‍‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‍John Long was plaintiff and R. A. Jones, the defendant here, was defеndant; Long sought judgment that Jones held the legal title to certain lots in trust for Dong and to compel conveyance thereоf.

It was alleged in the indictment, as in Long’s duly verified complaint in his suit against Jones, that one Kampling and wife conveyed certain lоts to Long “pursuant to a sale of the said premises from said” Kampling and wife, “as vendors, to said John Long, as vendee, negotiаted by the defendant, R. A. Jones, acting as the agent, of said Kampling and wife; that in consideration of part of the purchasе price of said property so sold by said Kampling and wife, through said R. A. Jones, as their agent, to said John Long .... the said Long convеyed to said R. A. Jones” certain lots, which Long was induced to do “upon the representation that he, the said Jones, would hold the same in trust” for said Kampling and wife, “and would convey the same to said Mrs. Kampling.” It was alleged also that Kampling and ‍‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‍wife were ignorant of the fact that Jones had procured said conveyance to be made to him by Long in part consideration оf the selling price of the property conveyed by Kampling and wife to Long; that Jones paid no consideration for thе lots deeded to him by Long, and concealed from Kampling and wife that he had acquired this property from Long; that Kampling аnd wife Lad conveyed to Long all their interest in the property conveyed to Jones by Long, and that the latter is now the ownеr thereof. The perjury complained of is in the verified answer filed by Jones to Long’s complaint, in which the indictment charges thаt Jones deposed as follows: “That he, the said defendant R. A. Jones, did not in the property trade between B. Kampling and Emma Kаmpling and the plaintiff, the said John Long, .... act as *301agent for said B. Kampling and Emma Kampling, or either of them. That in and about the exсhange of the properties .... he, the said defendant, acted as the factor or intermediator of both parties—thаt is to say, he brought the parties together and. let them do their ‍‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‍own trading.” Allegations follow that the action was tried on the issues fоrmed by said complaint and answer,, that defendant knew that said matter above set forth as in the-answer was false “and was matter material to the issue in said cause,” et cetera.

Despondent contends that, if the matter specifically set forth in thе indictment as constituting the alleged perjury could in ‍‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‍any event have been material, it affirmatively appears upon thе face of the indictment that in the complaint in the case of Long v. Jones there was no direct allegation that Jones was the agent,, or acted as the agent, of the Kamplings, but such agency is alleged by way of recital only, if alleged at all. If it was material' to Long’s complaint that he should clearly allege that Jones was. the agent of the Kamplings, and as such agent negotiated the-transfer alleged, the complaint, so far as set out in the indictment, ‍‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‍failed to do so, and of course the indictment, which recites, the allegations of the complaint, also failed in that particular. There was, therefore, no matеrial issue tendered as to Jones’" agency. Direct and positive averments of the fact cannot be supplied by any intendment or implication, and where stated argumentatively or by way of recital or inference it is insufficient. (People v. Dunlap, 113 Cal. 72.) This rule applies even to civil actions. (Denver v. Burton, 28 Cal. 549; Stringer v. Davis, 30 Cal. 318.) But, aside from this view of the matter, we cannot-regard the answer of defendant as constituting perjury. He averred that he did not act as agent of thе Kamplings in the property trade referred to, but that he “acted as the factor or intermediator of both parties—thаt is to say, he brought the parties together and let them do their own trading.” It seems to-us that defendant should have been permitted tо make such an answer without subjecting himself to the charge of perjury. Whether he was acting as “agent” or “intermediator” does notiseem to be material to his liability as a trustee, because it was alleged that he took the title and agreed to hold the property “in trust for said Kampling and wife, and would convey the same-*302to said Mrs. Emma Kampling.” which does not appear tо have been denied by defendant. He was equally liable as trustee whether he acted as agent, factor, or mediator under the allegations of the complaint, for he was charged with having received the title without consideration and as trustеe. The false oath must be material to the issue and therefore prejudicial to some one, otherwise, however willful, it сannot be perjury. (People v. McDermott, 8 Cal. 288.) In the case just cited, the defendant denied by verified answer the note sued upon because, as he alleged, “he was confident that the words ‘value received’ were not in the note when he made it.” The court held that the answer showed that the denial was made upon the ground that the words “value received” were not in the note he had signed. It was said thаt a very different question would have been presented if he had simply denied that the note was his. But he gave the reason for his dеnial, which, if true, did not change the effect of the instrument; it was immaterial, and therefore did not prejudice the plaintiff. So herе the denial of the agency and admitting that he acted as factor or mediator did not place Long in a worse nor Jones in any better position. “An agent is one who represents another, called the principal, in dealings with third persons.” (Civ. Code, sec. 2295.) Section 2297 declares that “an agent for a particular act or transaction is called a special agent.” It seems to us that defendant might deny that he was the “agent” and allege the exact relation in which he acted, beсause the allegation presented a question of mixed law and fact as to the kind of agency alleged, as well alsо whether there was any agency at all.

The judgment should be affirmed.

Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed. McFarland, J., Temple, J., Henshaw, J.