8 N.M. 523 | N.M. | 1896
The defendant was indicted in Bernalillo county for perjury committed while testifying in a civil cause in the district court. To that indictment a demurrer was interposed, her demurrer was sustained and the territory has appealed.
The indictment in the first count sets out a number of things testified to by the defendant touching conversations she had with Leeds, Johnson, and Wills, but in the assignment of the perjury the indictment did not negative in terms the facts so testified to, but avers that in truth and in fact that Leeds, Johnson, and Wills “did not make any such statements or offers to her,” and “did not make any.such statements as to said Pilkey having been in collusion with the said Frank Fagaly and the said Lee Walker for the purpose of defrauding the said Henry Lockhart and Benjamine Johnson of their interest in said claim.” The second count charges that she testified that Johnson, Leeds, and Wills told her that Pilkey, Walker, Fagaly, and Neelan were going into a scheme to do Mr-. Lock-hart up; that they, Johnson, Leeds, and Wills, got money from Neelan and had gone into a conspiracy to defraud Henry Lockhart by abandoning of the mining claim for the purpose of enabling Fagaly, Walker, and others to take possession of the same as against said Henry Lockhart and Benj. Johnson, and that they got money from Neelan to aid the prosecution of said conspiracy and scheme. And the assignment of perjury was that the said Leeds, Johnson, and Wills did not make “any such statement” to the defendant.
The demurrer sóts up two grounds, namely: (1) that said indictment does not set forth facts sufficient to show that the alleged testimony o'f the'defendant given upon said trial was upon any material question involved therein; and (2) that the assignment of perjury upon the. alleged testimony of defendant upon said trial as averred in said indictment, and in each count thereof, are insufficient in law, for that the same are general,'and do not specifically negative any particular fact alleged, to have been falsely testified to by this defendant upon said trial.
The indictment in this case does not specifically negative any fact testified to by the witness, and therefore the demurrer was properly sustained and the judgment will be affirmed.