122 Cal. 679 | Cal. | 1898
Defendant, convicted of perjury, appeals from the judgment and from the order denying him a new trial. Of the propositions which he advances in support of his appeal but one need be considered, since it is determinative of the question.
The indictment is fatally defective. It charged that the defendant did “falsely, feloniously, contrary to his said oath, and knowing the same to be false, swear, take oath, say and give in evidence, among other things, in substance as follows.”
By our Penal Code “every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states as true any material matter which
“It is a general rule that, unless the statute be recited, neither the words contra formara statuti, nor any periphrasis, intendment, or conclusion, will make good an indictment which does not bring the offense within all the material words of the statute; as if .... an indictment of-perjury on 5 Elizabeth, chapter 9, omit the words volantarie et corrupts.” (5 Bacon’s Abridgment, 90.)
In King v. Stevens, 5 Barn. & C. 246, it was charged against the defendant that he “then and there falsely and maliciously gave false testimony against J. H., by falsely deposing,” et cetera. It was held in arrest of judgment that the indictment was bad for not alleging that the defendant willfully and corruptly swore falsely.
By section 5392 of the Revised Statutes of the tlnited States one is guilty of perjury “who willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.” In United States v. Edwards, 43 Fed. Rep. 67, it is said upon this statute: “Perjury cannot be committed unless the person taking the oath not only swears to what is false, or what he does not believe to be true, but does so willfully.” It was further held that to charge that the statement was falsely and corruptly made was not sufficient in an indictment.
As to the rule in state courts under statutes similar to our own, there may be cited State v. Perry, 42 Tex. 238; Commonwealth v. Taylor, 96 Ky. 394; State v. Day, 100 Mo. 242; State v. Carland, 3 Dev. 114; Green v. State, 41 Ala. 419; State v.
The indictment concluded in the following language: “Whereby he, the said J. F. Turner, did then and there, as aforesaid, willfully, corruptly, contrary to his Dath, and knowing his testimony to be false, swear falsely, and feloniously, commit willful perjury.” This language is but a mere conclusion of law, and does not avail to cure the defect in the charging part of the indictment. (State v. Carland, supra; State v. Day, supra; Commonwealth v. Taylor, supra; 2 Bishop’s New Criminal Procedure, sec. 903.)
The judgment and order are, therefore, reversed and the cause remanded.
McFarland, J., and Temple, J., concurred.
Hearing in Bank denied.