DocketNumber: Crim. No. 629.
Citation Numbers: 211 P. 813, 59 Cal. App. 574, 1922 Cal. App. LEXIS 189
Judges: Hart
Filed Date: 11/9/1922
Status: Precedential
Modified Date: 10/19/2024
Under an indictment purporting to charge him with the crime of perjury, the defendant was convicted in the superior court of Glenn County of the crime so charged and this appeal is prosecuted by him from the judgment and the order denying his motion for a new trial. The indictment alleges that the defendant on the ninth day of January, 1922, having duly taken an oath before the superior court of the said county of Glenn that he would testify truly to the whole truth and nothing but the truth in the case then and there pending and at issue in said *Page 576 court, to wit: The People of the State of California v. J. H.Heusers, did willfully, unlawfully and feloniously in a manner material to such case, and to the issue therein, declare and testify the truth to be that he, said Arthur W. Dunstan, "did not see one G. L. Budd in front of Tom's Pool Room or the Popular Restaurant on Tehama Street, in the town of Willows, County of Glenn, State of California, on Saturday evening, November 19th, 1921, and talk to him at said place, and further that he did not talk to said G. L. Budd, or one J. H. Heusers, the defendant in the above mentioned case, in front of said restaurant, or in front of said Tom's Pool Room on Tehama Street, in the presence of or with said J. H. Heusers at all; and that he the said defendant, Arthur W. Dunstan, did not in the company of said G. L. Budd and J. H. Heusers talk together at said place, all of which is false, the defendant well knowing such statements to be false and untrue, and all of which is contrary to the form, force and effect of the statute," etc.
The defendant demurred to the indictment on the general ground that the same "does not state facts sufficient to constitute a public offense or at all," and thus the point first made by him on this appeal is raised. The specific contention is that the indictment does not aver that the alleged false testimony given by the defendant related to a matter material to the issue involved in the case and that the indictment does not otherwise state facts which in themselves disclose that said testimony was material to the issue or to the case.
Section
[1] The above definition of perjury is only a restatement of the offense as it was defined by the common law; and it will be observed that one of the essential elements of the offense as it is so defined is that the alleged false testimony shall be material to the issue tendered and tried in the case. In this state it has been said that there are two modes by which the materiality of the alleged false testimony *Page 577
may be shown in a criminal pleading: "First, 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; second, 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,
[2] The indictment here, it will be noted, does not directly state that the alleged false testimony given by the defendant in the case of People v. Heusers related to a matter material to the case or any issue therein, but states that said testimony was "in a manner" material to the case, etc. Nor do the facts set out in the indictment and which follow the averment that the defendant testified "in a manner material" to an issue in the case themselves disclose that the alleged false testimony related to a material matter therein, although the facts so alleged set forth the controversy in respect to which the offense is alleged to have been committed, to wit: the case of People v. Heusers. (Sec.
It is very clear that the indictment here contains all that the above section requires to be set forth in a criminal pleading charging the crime of perjury, although we would not say that that section is not to be considered in connection with section
In the case of Smith v. Territory, 14 Okl. 164 [
[3] The defendant, however, makes the further point that the alleged false testimony given by him in the case of People v.Heusers was not material to any issue arising in said case. In the case of People v. Heusers the defendant was charged with, tried for and convicted in the superior court of the county of Glenn of the crime of violating the so-called Wylie Liquor Law. It appears that one G. L. Budd, an officer or detective acting for the State Law and Enforcement League, among the purposes of which was the business of enforcing the laws and ordinances prohibiting the traffic in intoxicating liquors within the limits of cities, towns and counties of the state, went to the town of Willows to investigate conditions with respect to "bootlegging" in that community; that he received information which gave him good reason to know or believe that one J. H. Heusers was engaged in the illicit liquor traffic in said town.
At the trial of said Heusers, and also at the trial of the present case, Budd testified that he met the defendant Dunstan and asked him if he knew where he could procure some liquor; that Dunstan replied that he could get liquor from Heusers and thereupon either volunteered or agreed upon the solicitation of Budd to introduce the latter to Heusers and to assure him (Heusers) that Budd "was all right." Budd testified at said trial of Heusers that he met Heusers in the early part of the evening of the 19th of November, 1921, in the Popular Cafe; that he was introduced to him by the defendant Dunstan; that they had some conversation inside the restaurant but within a few minutes after they started the conversation the three (Heusers, Dunstan and *Page 581 Budd) stepped out on the sidewalk, stood in front of Tom's Pool Room, which is next door to the Popular Cafe, and resumed their conversation about the proposed purchase of liquor from Heusers by Budd. These negotiations, so Budd testified both in the Heusers and in the present case, occurred in the presence and the hearing of the defendant Dunstan, and the result thereof was that Budd purchased from Heusers a quart bottle of "jackass," for which he paid Heusers the sum of five dollars.
J. H. Heusers, the defendant in the case of People v.Heusers, testifying in his own behalf in said case, stated that he did not know said witness Budd; that he never sold Budd any liquor on the nineteenth day of November, 1921, or at any other time; that, although he had seen Budd in the Popular Cafe, he never had talked to him either in said cafe or on the sidewalk outside and in front of the restaurant on Saturday evening, November 19, 1921.
The defendant, Dunstan, supporting the foregoing testimony of Heusers, testified in said case of People v. Heusers, and in response to the cross-examination to which he was subjected by the district attorney in part as follows: "Q. Did you see Mr. Budd down in front of the Pool Room or the restaurant (referring to Tom's Pool Room and the Popular Restaurant) that night (November 19, 1921), and talked to him at all? A. I did not. Q. Did you talk to him that night in front of the Pool Room or in front of the restaurant in that block on Tehama Street in the presence of Mr. Heusers at all? A. I did not. Q. Did all three of you talk together there? A. We did not."
In the present case the witnesses Frank Mursa and Newt Power, the latter sheriff of Glenn County, each testified that on the evening of the 19th of November, 1921, between 6 and 7 o'clock, he saw Budd, the defendant Dunstan and Heusers standing together and in conversation on the sidewalk in front of and near Tom's Pool Room on Tehama Street in the town of Willows. Mursa stated that he was about sixty feet from where the trio were standing and he observed from the movement of their lips that they were carrying on a conversation. Power testified that he stood thirty or thirty-five feet from where the three men were standing and that, while he was unable to hear what *Page 582 they were saying, he did observe from the movement of their lips that they were engaged in conversation.
Upon the testimony given by the defendant in the case of thePeople v. Heusers, as presented above, the indictment was predicated and, as to said testimony, the counsel for the defendant in his brief says: "The matter of Budd having talked to or seen appellant in front of the restaurant on this particular night was a mere incident occurring during the progress of the trial of J. H. Heusers, and had no bearing one way or the other upon the issue as to the guilt or innocence of the defendant, J. H. Heusers." In other words, the contention is that Dunstan's testimony as given in the Heusers case and as hereinabove set forth was wholly collateral to any issue raised in the case and not material thereto, and that, therefore, the evidence is wholly insufficient to support the verdict.
It may be conceded that the testimony was upon a collateral question in the case, but it does not follow that the question to which it related did not involve a material issue within the meaning of the law. Budd had testified to the circumstances leading to the commission of the crime charged against Heusers and among these was the circumstance that the defendant Dunstan introduced him (Budd) to Heusers and was present and engaged in a conversation held in front of the pool room referred to on the evening of the 19th of November, 1921, between him (Budd), Dunstan and Heusers and which conversation led to the consummation of the crime with which Heusers was subsequently charged and upon which he was later tried and convicted. It will, therefore, readily be perceived that the testimony of Dunstan denying that he was present with Budd and Heusers at the time and place mentioned involved a direct attack upon the credibility of the whole testimony of Budd in the Heusers case, and also involved the credibility of his own testimony. And, of course, it related to a matter most material to the case. If the jury had believed Dunstan, they could have justly repudiated the entire testimony of Budd and have returned a verdict of not guilty in the Heusers case, since it was principally upon Budd's testimony that the verdict in said case was founded.
In the case of the People v. Barry,
In Rex v. Giepe, 1 Ld. Raym. 256, it was said: "It is not necessary that it should appear in an information for perjury to what degree the point in which the man is perjured was material to the issue, for if it is but circumstantially material, it will be perjury. . . . So if a witness swears to the credit of another witness, if it be false it will be perjury if it conduced to the proof of the point in issue." And we may subjoin to the latter statement the suggestion that, conversely, if the witness swears to the discredit of another witness and it be false, it will be perjury *Page 584 "if it conduce to the proof (or to the disproof) of the point in issue."
In 22 Am. Eng. Ency. of Law, 687, the rule is thus stated: "The matter sworn to need not be directly and immediately material. It is sufficient if it be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact by giving weight or probability to the testimony of a witness testifying thereto, or otherwise." (See, also, People v. Senegram,
[4] In fine, the test of materiality is whether the statement made could have influenced the tribunal upon the question at issue before it. Any statements made in a judicial proceeding for the purpose of affecting the decision, and upon which the judge acted, are material. In other words, evidence affecting the credibility of a witness usually tends to strengthen the case of a party to an action or to weaken the defense of his adversary and, therefore, such evidence is material. (People v.Brilliant,
There can be no doubt that, for the reason already stated, the alleged false testimony in this case tended to weaken the case of the people in the prosecution of Heusers and, consequently, under the rule as enunciated in the above cases, it was material to a vital issue in the case.
No other points are discussed in the briefs.
The judgment and the order are affirmed.
Burnett, J., and Finch, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 8, 1923.
All the justices concurred. *Page 585
State v. Hall , 88 Mont. 297 ( 1930 )
People v. Smith , 56 Cal. Rptr. 258 ( 1967 )
Edmund Y. Chein v. Richard Shumsky, Chief Probation Officer,... , 373 F.3d 978 ( 2004 )
People v. Guasti , 110 Cal. App. 2d 456 ( 1952 )
People v. Matula , 52 Cal. 2d 591 ( 1959 )
In Re Imbler , 60 Cal. 2d 554 ( 1963 )
People v. Di Giacomo , 14 Cal. Rptr. 574 ( 1961 )