People v. Brown

MUSSELL, J.

Defendant was tried before the court without a jury and found guilty of six counts in an information charging violations of section 11649 of the Elections Code. This section provides that:

“Every person who subscribes to any initiative, referendum or recall petition or to any nominating petition a fictitious name, or who subscribes thereto the name of another, is guilty of a felony and is punishable by imprisonment in the State prison for not less than one nor more than fourteen years.”

The separate offenses charged related to the subscription by the defendant of six different names of fictitious persons to an initiative petition to legalize gambling in the State of California. Defendant was sentenced to imprisonment in the state’s prison and he appeals from the judgment and order denying his motion for a new trial.

The principal contention of appellant is that since the instrument upon which the prosecution was based was not sworn to by him, it was not an initiative petition as defined by article IV, section 1, of the California Constitution and that the judgment of conviction should, therefore, be reversed.

From the record before us it appears that the defendant was employed to circulate the petition involved, and, after having subscribed fictitious names thereto, he returned it to the distributor’s office, where he signed the affidavit attached thereto, stating therein that he was a registered elector; that he had solicited the signatures attached to the petition; that all the signatures were made in his presence and upon the dates shown and were solicited by him within the county; that to the best of his knowledge and belief, each signature was the genuine signature of the person whose “name it purports to be.” The affidavit purports to be subscribed and sworn to before a deputy county clerk, who signed and delivered it to the county clerk’s office, where the clerk’s seal was affixed and the document filed.

It appears that six of the signatures listed on the petition were of fictitious names subscribed to the petition by the defendant and no claim was made by the defendant at the trial that the signatures were genuine.

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