117 Cal. 681 | Cal. | 1897
Defendant has been convicted of the crime of perjury, and appeals from the judgment and order denying his motion for a new trial. He has attacked the sufficiency of the indictment both by demurrer and motion in arrest of judgment, and to that attack we will address our attention.
As appears by the indictment, one Abbott was convicted of grand larceny. She. moved for a new trial upon the ground of newly discovered evidence. At the hearing of the motion her counsel used the affidavit of this defendant, which was sworn to by him before a party duly authorized to administer oaths. By this affidavit defendant declared that Abbott was not the party who committed the crime, and that he (defendant) was such party. It is further alleged that he made this false affidavit in the action and proceeding entitled The People of the State of California v. Aggie Abbott.
Before a party may be convicted of perjury in making a false affidavit, he must either use the affidavit for a purpose contemplated by section 118 of the Penaf Code, or deliver it to some one for such use. This principle of law is recognized and declared by section 124 of the chapter of the Penal Code bearing upon the crime of perjury, where it is declared: “ The making of a deposition or certificate is deemed to be complete,
The indictment cannot stand the test when tried by the principle of law here declared. It does not charge facts sufficient to constitute the offense. Evidence es. tablishing the facts stated in the indictment would not prove defendant’s guilt. The fact that the affidavit was used by the attorney of Abbott upon the hearing of the motion adds no strength to the pleading. Perchance it was purloined for the purpose. There is nothing in the pleading to indicate that it was so used at the request or with the consent of this defendant. Perhaps it was
For the foregoing reasons the judgment and order are reversed and the cause remanded.
Van Fleet, J., and Harrison, J., concurred.