People v. McDermott, 8 Cal. 288

People v. McDermott

8 Cal. 288 | Cal. | 1857

Burnett, J., after stating the facts, delivered the opinion of the Court—Field, J., concurring.

The only question necessary to be determined is, whether the oath taken by defendant was material to the issue. The rule is well established, that the false oath must be material to the issue, and, therefore, prejudicial to some one, otherwise, however willful, it cannot be perjury.

Taking the whole of the answer of defendant together, it *291is plain that he predicated his denial that the note set out in the complaint was not his note, upon the ground, that the note given by him did not contain the words “ for value received.” Had the defendant simply stated, that the note sued on was not his note, it would have presented a very different ease. But, after stating that it was not his note, he gives the reason, and then draws his conclusion. The alleged reason given, if true, would not change the legal effect of the note. Conceding that the words “ for value received,” were not in the note executed by defendant, still the instrument would have had the same legal effect. Story on Prom. Notes, § 51; 3 Kent, 78; Chitty on Bills, 68, 69.

The demurrer should have been sustained.

Judgment reversed, and the defendant discharged.