DocketNumber: Crim. No. 71.
Citation Numbers: 98 P. 686, 9 Cal. App. 262
Judges: CHIPMAN, P. J. —
Filed Date: 10/31/1908
Status: Precedential
Modified Date: 1/12/2023
Defendant was informed against for the crime of perjury alleged to have been committed in registering *Page 263 as a voter. When called upon to plead in the superior court he demurred to the information and also filed a motion to set it aside upon the following grounds: That prior to the filing of the information against him he had not been legally committed by a magistrate because of the insufficiency of the complaint filed in the magistrate's court. This alleged insufficiency consisted in the claim that the said complaint was not based upon the personal knowledge of the complaining witness; that no depositions of persons knowing the facts of the case of their own personal knowledge were attached to said complaint or made part thereof, and hence the issuance of the warrant of arrest was illegal and void; that the commitment and the succeeding proceedings were illegal and void; "that the testimony of the two witnesses, H. P. McBeth and W. M. Cleveland, consisted entirely of questions and answers touching their qualifications to administer oaths and regarding statements made by defendant at two different times and in a manner contradictory to each other, but no attempt was made or was any evidence offered to prove which of the two statements was true or which was false."
The information charged that defendant, in making oath at the time his name was placed upon the great register, in 1908, declared that he was born in San Francisco, California, whereas in truth he was born in England. No objection was made as to the sufficiency in point of form either of the information, the warrant of arrest or commitment. But it was further objected "that though the complaint (filed in the magistrate's court) appears on its face as sworn to, that M. C. Kerr, the complainant (district attorney), makes complaint upon his own personal knowledge and not upon information and belief, his affidavit of registration on file in the office of the county clerk of Plumas county shows that at the time of the birth of the defendant the complaining witness was an infant of the age of about one year," and hence he could not have made the complaint otherwise than upon information and belief, which it is claimed is wholly insufficient. The trial court made an order setting aside the information, and the people appeal.
The testimony of County Clerk McBeth and his deputy, Cleveland, was that the defendant registered in 1906, making oath that he was born in England, and that upon registering *Page 264 in 1908 he made oath that he was born in San Francisco, California. The respondent has filed no brief.
As to the objection to the complaint that it was made upon information and belief, the record fails to support the claim that the complainant was at the birth of defendant too young to personally know where defendant was born, and hence must have deposed upon information and belief only. If such was the fact, it should have been made to appear, for error will not be presumed. For all that appears, the complaining witness was a much older man when he swore to the complaint than as stated in the objection made. We must assume it to be true that the complaining witness deposed from personal knowledge, as the complaint on its face so shows. The question, therefore, whether a complaint charging perjury upon information and belief, otherwise unsupported, is insufficient in law is not before us for review.
But it was urged in support of the motion that the evidence taken before the magistrate was wholly insufficient to justify the making of the order of commitment. It was proved that on January 31, 1908, defendant signed and verified an affidavit stating that he was born in San Francisco, California. It was also proven that on June 16, 1906, he had signed and verified an affidavit stating that he was born in England and had been naturalized in San Francisco. We think there was enough in the two contradicting affidavits of defendant to establish probable cause for holding him to answer the charge made.
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The order setting aside the information is reversed and the cause remanded for further proceedings.
Hart, J., and Burnett, J., concurred.