123 Cal. 299 | Cal. | 1899
Indictment 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 defendant; Long sought judgment that Jones held the legal title to certain lots in trust for Dong and to compel conveyance thereof.
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 lots to Long “pursuant to a sale of the said premises from said” Kampling and wife, “as vendors, to said John Long, as vendee, negotiated by the defendant, R. A. Jones, acting as the agent, of said Kampling and wife; that in consideration of part of the purchase 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 conveyed 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 of the selling price of the property conveyed by Kampling and wife to Long; that Jones paid no consideration for the lots deeded to him by Long, and concealed from Kampling and wife that he had acquired this property from Long; that Kampling and wife Lad conveyed to Long all their interest in the property conveyed to Jones by Long, and that the latter is now the owner thereof. The perjury complained of is in the verified answer filed by Jones to Long’s complaint, in which the indictment charges that Jones deposed as follows: “That he, the said defendant R. A. Jones, did not in the property trade between B. Kampling and Emma Kampling and the plaintiff, the said John Long, .... act as
Despondent contends that, if the matter specifically set forth in the indictment as constituting the alleged perjury could in any event have been material, it affirmatively appears upon the 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 material 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 the Kamplings in the property trade referred to, but that he “acted as the factor or intermediator of both parties—that 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 to 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-
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.