People v. Kelly
1869 Cal. LEXIS 128
Cal.
1869
Check Treatment
Sawyer, C. J., delivered the opinion of the Court:

The defendant was indicted for the crime of perjury, committed by swearing falsely as to settlement, residence and cultivation, before the Register of the United States Land Office, in the Stockton Land District, in the matter of his application tо make proof of settlement and cultivation of a tract of land—a part of the public domain of the United States. A demurrer to the indictment was interposed, on the ground, among others, that the State Court had no jurisdiction of the offense, because it was not committed in any Court or tribunal of the State, nor against the State, but against the United States, and that it is only cognizable in the Federal Courts. The demurrer was overruled, and, upon a subsequent trial, a conviction had.

The fifth section of the Act of Congress of 1857, entitled ‍​​‌​​​​‌​‌​‌​‌​‌​‌‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌‌​​‍“An Act in addition to an Act more effectually to provide *149for the punishment оf certain crimes against the United States, and for other purposes,” provides as follows : “And be it further encucted, That in all cases where any oath, affirmation or affidavit shall be made, or taken before any Register or Receiver, or either or bоth of them, of any local Land Office in the United States, or any Territory thereof, or where any oath, affirmation or affidavit shall be made or taken before any person authorized by the laws of any State or Territory of the United Statеs to administer oaths or affirmations, or take affidavits, and such oaths, affirmations or affidavits are made, used or filed in any of said local Land Offices, or in the General Land Office, as well in cases arising under any or either of the orders, rеgulations or instructions concerning any of the public ‍​​‌​​​​‌​‌​‌​‌​‌​‌‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌‌​​‍lands of the United States, issued by the Commissioner of the General Land Office, or other proper officer of the Government of the United States, as under the laws of the United States, in anywisе relating to or affecting any right, claim or title, or any contest therefor, to any of the public lands of the United States; and any person or persons shall, taking such oath, affirmation or affidavit, knowingly, wilfully or corruptly swear or affirm falsely, thе same shall be deemed and taken to be perjury, and the person or persons guilty thereof shall, upon conviсtion, be liable to the punishment prescribed for that offense by the laws of the United States. ”

The eighty-second sectiоn of our own State Criminal Code, under which the defendant was indicted, reads as follows : “Every person having taken a lawful оath or made affirmation in any judicial proceeding, or in any other matter where by law an oath or affirmation is required, who shall swear or affirm wilfully, corruptly and falsely in a matter material to the issue or point in question, or shall suborn any оther person to swear or affirm as aforesaid, shall be deemed guilty of perjury or subornation of perjury (as the сase may be), and .upon conviction thereof shall be punished by imprisonment in the State Prison for any term not less than one nor more than fourteen years.”

There can be no doubt that the acts charged constitute an ‍​​‌​​​​‌​‌​‌​‌​‌​‌‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌‌​​‍offense аgainst the laws of the United States, under the *150section of the statute quoted, but it is not so clear that it is embraced within the terms of our own statute. The “judicial proceeding” or “other matter where, by law, an oath or affirmation is required, ” may well rеfer to judicial proceedings and oaths required by the laws of the State only. It is not so clear that it was designed to еxtend to any other. The State tribunals have no power to punish crimes against the laws of the United States, as such. The same аct may, in some instances, be an offense against the laws of both, and it is only as an offense against the State laws ‍​​‌​​​​‌​‌​‌​‌​‌​‌‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌‌​​‍thаt it can be punished by the State, in any event. That the offense charged is not cognizable in the State Courts, the case of The State v. Adams (4 Blackf. 147) and State v. Pike (15 N. H. 83) are authorities directly in point. The first is entirely similar to the present case, the affidavit constituting the offense being with reference to the settlement of the defendant on the public lands. In the second case, the perjury chаrged was committed in a proceeding under the National Bankrupt Act. The Court distinguishes it from the class of cases like Fox v. The State of Ohio (5 How. 410), Moore v. Illinois (14 How. 14) and People v. White (34 Cal. 183). On this point, in State v. Pike, thе Court says: “Happily for us, however, we are of opinion that the classes of crime we have thus referred to, аlthough there is some analogy between them and the case before us, do not necessarily govern this case. There is a distinction which ‍​​‌​​​​‌​‌​‌​‌​‌​‌‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌‌​​‍we think is conclusive, whatever may be the true principle applicable to them. In those сases the acts done and charged as violations of the laws of both Governments, are not done in the course of the administration of the laws of either Government; but the matters from which the charge now before us arises are alleged tо have occurred under and in the course of the execution of the laws of the United States. Those laws required certain things to be done. Congress had the right to prescribe how they should be done, to regulate the duties of all persоns who acted under the law, and to prescribe penalties for the violation of such duties. In such case, if acts аre done which, if transacted under the laws of this State, would .have constituted offenses under the provisions of our Crimi*151nal Code, yet, being done in pursuance of the laws of another Government (having the sole power to regulate the whоle proceeding), authorizing the act to be done, prescribing the mode, imposing the duty, and affixing the penalty for thе violation of it, the acts cannot be regarded as having been done under the sanction of the laws of this State, so as to subject the parties to punishment under those laws. Mr. Justice Story says exclusive jurisdiction is uniformly attendant upon exclusive legislation. (2 Mason, C. C. Rep. 91; United States v. Cornell. See, also, the opinion of Mr. Justice McLean, 9 Peters, 261; United States v. Bailey.)”

This distinction seems to be properly taken. It follows that the demurrer should have been sustained.

Judgment reversed.

Sanderson, J., expressed no opinion.