117 P. 939 | Cal. Ct. App. | 1911
Appellant was convicted of perjury and sentenced to the penitentiary for the term of two years. The accusation was that, in an investigation before the election board of Princeton precinct, in the county of Colusa, at the general election on November 8, 1910, he testified falsely concerning his qualifications as a voter in said precinct. The portion of the information deemed sufficient for *740 the purpose of discussion is as follows: "That thereupon at the time and place last aforesaid, the right of the defendant to vote at said election was duly challenged upon the ground that he, the said defendant, had not resided within the said precinct of Princeton the length of time prescribed by law in order that he might be entitled to vote at said election in said precinct. That the board of election of said Princeton precinct then and there having and had competent jurisdiction to hear, decide and determine said challenge and proceeding, and was then and there fully empowered to administer the law in said challenge and proceeding; that it then and there became and was material to know in the determination of said challenge, whether or not the said defendant had been a resident of said precinct of Princeton for and during the time required by law to constitute him a qualified elector of said precinct. And said defendant was then and there duly called as a witness in his own behalf upon the trial of said challenge; that thereupon one Vern D. Shaver, a duly appointed, qualified and acting member of the board of election of said precinct at said election, to wit, an inspector, and an officer authorized by law and competent to administer an oath to the said defendant in said proceeding, did then and there, to wit, on the said eighth day of November, 1910, at and in Princeton precinct in Colusa county, state of California, administer an oath in due form of law to said defendant, and being so sworn as aforesaid to testify truly, he, the said defendant, did then and there and in the trial of said challenge, willfully, knowingly, corruptly, falsely and feloniously swear, take oath, say and give in evidence among other things in substance as follows: That he, the said Theodore Henry Schweichler, had been working for one Mr. Cockerill for twenty days last past, whereas in truth and in fact as he, the said Theodore Henry Schweichler, then and there well knew, he, the said Theodore Henry Schweichler had not worked for the said Mr. Cockerill at all during any of the twenty days last past."
It thus appears that the whole basis for the charge of perjury is found in the declaration under oath by defendant that "he had been working for twenty days last past for Mr. Cockerill," and the inquiry is easily suggested whether there is in the information a sufficient exposition of *741
the materiality of this testimony to satisfy the statutory definition of the crime. Section
"In the absence of a statute to the contrary, it is well settled that an indictment for perjury must show conclusively that the testimony given or assertion made by defendant, and charged to be false, was material to the issue on the trial of which he was sworn." (30 Cyc., p. 1433.)
It is equally well settled that there are two modes by which the materiality of the alleged false statement may be shown in the information: "1. By setting forth the nature of the issue and the evidence given thereon, so that as a matter of law it may be said the testimony upon which the perjury is assigned is material to the issue; 2. By showing an action at issue in a court of competent jurisdiction, the testimony given, its willful and felonious falsity, coupled with the averment that it was material to the issue." (People v. Ah Bean,
Hart, J., and Chipman, P. J., concurred.