4 P.2d 242 | Cal. Ct. App. | 1931
We are asked to free appellant from the effects of a conviction of perjury, because, technically expressed, the assignment of perjury was in solido and the proof failed to establish the falsity of the totality. Stated more plainly, the claim is, that because his testimony was averred to be contrary to the truth in two instances, set out conjunctively, and it developed that only in one instance had he departed from the truth, he has not been shown guilty of the offense charged. This plea does not commend itself to our minds. Appellant, in his opening brief, correctly senses the impression made by his argument when he says: "The layman would, perhaps, say that it was all pure technicalities." His answer to this criticism is: "We must not break down fixed and fundamental principles of law because of the layman's cry of technicalities." With this we argee; but it is the part of wisdom nevertheless, when we are confronted by a rule which outrages common sense, to scrutinize it carefully to make sure that it is a fixed and fundamental principle of law, required by the administration of justice, and is not just a phrase worthy of respect on no ground other than its venerable appearance.
The indictment, under which appellant was brought to trial alleges that appellant was a properly sworn witness at the trial of his fellow police officer, Bost, who was charged with murdering one Sierra. The materiality of three questions (or groups of questions) was then shown: (a) was Sierra at and in the vicinity of and in the neighborhood of the intersection of Utah and Las Vegas Streets on the evening of July 4th, and on the morning of July 5th; (b) did the appellant see Sierra at said locations, or either of them, at either of said times; (c) did Bost fire a revolver at either location, at either time? Called upon to answer concerning these questions, the indictment continues, appellant falsely swore that Sierra was not, and appellant did not, on the *435 evening of July 4th, see him at or in the vicinity of or in the neighborhood of the intersection of Utah and Las Vegas; nor was Sierra, nor did appellant see him, at any of the places mentioned on the morning of July 5th; and that Bost did not fire a revolver on either of said times or at either of said places. The indictment continues in these words:
"Whereas, in truth and in fact, as he, the said Fred A. Pahrman, then and there well knew, said Christobal Silvas Sierra, also called and known as Christopher Silvas Sierra, was, on the evening of the fourth day of July, 1929, and on the morning of the fifth day of July, 1929, present at and in the vicinity of and in the neighborhood of the intersection of Utah and Las Vegas Streets in the City of Los Angeles, state of California; and
"Whereas, in truth and in fact, the said Fred A. Pahrman, on the evening of the fourth day of July, 1929, and on the morning of the fifth day of July, did see said Sierra at and in the vicinity of and in the neighborhood of the intersection of Utah and Las Vegas Streets in the City of Los Angeles, State of California; and
"Whereas, in truth and in fact, said William J. Bost did, on the evening of the fourth day of July, 1929, and on the morning of the fifth day of July, 1929, at and in the vicinity of and in the neighborhood of the intersection of Utah and Las Vegas Streets, in the City of Los Angeles, State of California, fire and discharge a gun and revolver, . . ."
[1] Appellant was tried by the court without a jury and without witnesses, except as they appeared by the stipulation that the witnesses who testified at the Bost trial should be deemed to have given the same testimony again in the case under review. So adduced, the evidence, though conflicting, was sufficient on this trial, as it had been found before (seePeople v. Bost, (1930)
In order the better to understand his quotations from the authorities, appellant introduces his argument with the proposition that that portion of the indictment for perjury, wherein is contained the averments showing that the truth and the statements made by the defendant do not agree, is called the "assignments of perjury". In our case this is the part of the indictment quoted above. Appellant is correct in his contention. (People v. Bradbury, (1909)
The weight of these several statements may be fairly measured by the authorities cited in support of them, as they appear to be based not on abstract reasoning, but on cases cited. Four early English cases are given in the footnote appended to the first quotation from Wharton's work. Each of these cases deals with the rule that the falsity of the assignment must be established by two witnesses or one witness and corroborative circumstances. None of the four even tend to support the statement that "every fact . . . *437
should be . . . disproved". The emphasis is on "so". The second quotation from Wharton's stands on a footnote containing two cases: Rex v. Jones, (1791) Peake N.P. Cases, p. 51 (erroneously given in the footnote as p. 37), 170 English Reprint, 75, and State v. Ah Sam, (1879)
The statement quoted from Corpus Juris first appeared in 30 Cyc. 1452, at which time but one case was referred to in its support, viz., Brown v. State, (1898) 40 Tex. Cr. 48 [
The footnote in Corpus Juris, connected with the text quoted, contains in addition to Brown v. State, just reviewed, andRex v. Jones, already found to be of no help, two later Texas cases. In the first of these, Adams v. State, (1906) 49 Tex. Cr. 361 [
Two other cases, to which attention was directed in the footnote of the Corpus Juris text, should be mentioned. The first is a decision of this court, People v. Senegram, (1915)
In addition to these authorities, to which we have been led by appellant, we found, in McClain on Criminal Law, (1897) volume II, section 883, this statement: "But if the entire matter alleged to have been falsely stated is set out in one averment the whole must be proved." Two cases are given as authority by the authors: Rex v. Reefe, (1809) 2 Camp. 134, 170 Eng. Reprint, 1106, and State v. Blaisdell, (1879)
This somewhat lengthy review of the authorities satisfies us that the rule contended for not only is not established in this state, but also that it is not so rooted in the common law that it is a "fixed and fundamental principle of law" to which we must bow. Nor are we conscious of any rule of reason which would require a reversal in this case, because the state failed to prove that appellant's sworn testimony was false in both particulars alleged. We do not say that there might not be cases where a failure to prove one-half of a conjunctive allegation of falsehood might not be fatal, but there is here no such relation between the two statements that proof of one is inconsistent with or falls by failure to prove the other. With a trial by the court, without a jury, there can be no question of a verdict reached without unanimity as to the day involved. The allegations that the event happened on July 5th may be treated as surplusage, and disregarded. (State v. Herrera, (1922)
The judgment is affirmed.
Conrey, P.J., and Houser, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 27, 1931, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 12, 1931.