People v. Quinn

18 Cal. 122 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Field, C. J. and Cope, J. concurring.

The defendant was convicted of perjury in giving in a false list of his property.

1. The first exception is, that the Act of 1857, under which the oath was taken, was repealed before the finding of the indictment, or at least, before the trial, and therefore the defendant was pot amenable to its provisions. But though this point would be good at the common law, it is not well taken here, because the statute (Wood’s Dig. art. 1868) provides that notwithstanding the repeal of a penal act, offenses commtted while it was in force are still punishable.

2. It is next objected that the affidavit must be in writing, and accompany the list or statement, and in this case there was no such affidavit, but parol proof was given of the oath. Doubtless it is a more certain and a better practice to take the affidavit in the form suggested, but we see nothing in the statute which makes it indispensable. It is true, some sections of the statute speak of a “ list,” and of a “ statement; ” and the inference from, if not the direct meaning of these expressions is, that the schedule of the property should be in writing; but this act does not prescribe that the oath is to be in writing and subscribed; the mere requirement that a statement is to be made under oath, does, not imply that the oath is to be reduced to writing, and subscribed by the affiant. Nor is it necessary that a list be furnished in the handwriting of or made out by. the taxpayer. This would be inconvenient, and is unnecessary. It is enough if he furnish the materials or information to the Assessor, who may himself make out the list.

8. It seems that on the trial the prosecution offered a memorandum book, in which the Assessor entered a note of the property given in by the defendant. This entry was made in pencil in the handwriting of the Assessor. This memorandum constituted the list of property in respect to which the perjury is charged. Perhaps this was admissible to show that there was a list of property taken by the Assessor, but we cannot see that it was legal evidence to prove that the property therein was that given in by the defendant, or that it was all the property given in by him, or that he swore to it as a correct list of his property. It was not offered to refresh the memory of the witness ; but the witness stated that only by this memorandum he was enabled to testify as to the property the defendant swore to. The paper seems to have been offered as sufficient proof of itself—after being identified as the list made by the Assessor—of all the facts it recites. We do not see by what authority such effect could be given to it. It was not a record,, or even an official book, recognized or required by law. It seems to be the mere act of an officer—like that of a Sheriff taking a memorandum of property levied upon—which could not be held as evidence of itself of the facts recited.

The Court, after admitting this memorandum in evidence, instructed the jury, on their return, that this entry was legal evidence.

The charge we think too broad, and calculated to mislead them. It was not, under the facts detailed by the witness, evidence of the facts contained in the memorandum.

For this error the judgment is reversed, and the cause remanded.