277 P. 1082 | Cal. Ct. App. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *39 This is an appeal by the People from a judgment of the Superior Court, dismissing the action after an order sustaining a demurrer to an amended information. The information contained five counts. The first two counts charged the defendant with offenses of offering and giving bribes to persons who were about to be called as witnesses in the case of McAllister v. Lightburn et al., then and there about to be filed in the Superior Court of the State of California, in Los Angeles County, upon the understanding and agreement that the testimony of said witnesses in said case should be influenced thereby. Counts three, four and five are of the same import, and charge the defendant with an attempt by certain means to fraudulently induce the giving of false and withholding of true testimony by having prepared false evidence in writing for the signature of said witnesses, *40 with intent to produce the same as true and genuine, and to contradict the testimony of another person to be given in an action about to be filed.
A motion to set aside the information, and a demurrer which occupies thirty-eight pages of the transcript, were interposed. The demurrer attempts to present points which could not be raised by demurrer. For example, it recites, "that the offense charged against the defendant is not shown by the evidence taken at the preliminary examination." This and many other and similar statements are embraced therein.
The district attorney has proceeded upon the theory that the information is sufficient as charging the offense denounced by section
[1] It is the contention of the respondent that this section has no application where, as here, it does not appear that there was any action or proceeding pending which might be affected by any misconduct of the defendant.
At the outset it must be remembered that this is a law primarily to prevent the corrupt interference with the administration of justice. Its purpose is to go back as far as necessary and say in effect that any attempt to so influence prospective witnesses that the truth will not be presented in anticipated litigation is felonious. In State v. Holt,
The term "or person about to be called as a witness" in the first part of the section, it seems clear, was used with the legislative intent of including within its denouncement all offers of bribes to any person in contemplation of his becoming a witness. Such anticipation is not affected as to its moral or legal wrongfulness by the fact, if it be one, that the proceeding in which influenced testimony is to be given or withheld has not yet been filed. It seems equally clear that the term "any person" used in the last phrase is intended to include both any witness and any person about to be called as a witness as denominated in the first part of the statute. If A attempts by any means other than bribery to induce B to give false or withhold true testimony, the criminal act is committed and the criminal intent exists equally whether there is or is not a proceeding then pending, during the progress of which B is to give testimony or withhold it.
These principles are recognized in In re Shepard,
Respondent cites People v. Berkowitz, 121 Misc. Rep. 40 [200 N.Y. Supp. 823], Brown v. State, 13 Tex. App. 358, andState v. Joaquin,
[2] It is argued that since certain other sections in the same chapter in which section
[3] It is pointed out that the chapter in which section
[6] We think this information is sufficient as a pleading. Each count alleges a violation of section
[7] Extensive argument on behalf of the respondent is devoted to criticism of the ruling denying his motion to set aside the information as amended, and in attempted support of the ruling sustaining the demurrer to each of the five counts. It is insisted that the People's pleading is not based upon, nor does it conform to, the evidence or commitment in the municipal court; that there was no evidence taken at the preliminary examination tending to show the offense charged in the information, and that he was not legally committed. Neither a copy of the commitment, nor any evidence adduced at the preliminary examination was transmitted to us in this proceeding, and being confined to the record as presented, we must presume that the ruling of the court in denying the motion was proper. [8] It may be added, that no appeal was taken from the order mentioned, and the correctness of that decision is not before us. We are not advised by the transcript as to the offense for which the respondent was apprehended, the offense which the evidence tended to show, nor that with which he was charged in the commitment, yet various authorities are cited, and there is much discussion, from which we assume that it is contended that there was a fatal variance between the commitment and the information. Section
For the reasons herein expressed the judgment is reversed and the trial court is directed to overrule the demurrer.
Works, P.J., and Thompson (Ira F.), J., concurred.
A petition by respondent to have this cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 13, 1929.
Seawell, J., and Preston, J., dissented.