[345]WARD, J. Appellant was indicted, tried by a jury and convicted of perjury. The indictment contains one count which alleges in substance that on March 27, 1934, in an affidavit of registration as an elector he stated under oath before a deputy registrar of voters authorized to administer oaths in the department of elections at San Francisco that his name was “Sam Darcy” and his place of birth “New York,” whereas his true name is Samuel Dardeek or Samuel Adams Dardeck and his place of birth Ukraine, Russia.
-A demurrer and supplement to demurrer to the indictment were overruled; a motion to dismiss the indictment and a motion to quash the same were dismissed, and a challenge to the jury panel was disallowed. Upon the return of the verdict, motions in arrest of judgment and for a new trial were made and denied, whereupon a motion for probation was made and granted, and the pronouncement of judgment suspended.
Appellant did not testify in his own behalf. However, as appears from testimony given by him before the Immigration and Naturalization Service at Ellis Island, New York, he was born in Orinion, Russia, and given the name of Srool Adam Dardeek. With his brothers and sisters he was brought to the United States by his mother, his father having emigrated to this country a year earlier. The latter secured naturalization and it is by reason of this fact that appellant as a minor child acquired his citizenship. He was married in New York in 1926 under the name of Samuel Adams Darcy; in 1927 he remarried his wife in Chicago under the name of Samuel Adams Dardeek. In the same year, he applied for passports to Europe for himself and his wife whom he stated he “married on May 13, 1927,” his application stating under oath that his name was Samuel Adams Dardeek and that he had been born in Russia. In 1932 in connection with an interview with an inspector of the police department of Long Beach to establish his identity, he signed the name of Sam Darcy to a written statement that he was born in New York. Affidavits, also, made by him in 1931, 1932 and 1934 before the registrar of voters in San Francisco gave his name as Samuel Adams Darcy, Samuel Darcy and Sam Darcy, respectively, and his birthplace as New York. In 1934, also, he filed under oath a declaration of candidacy for the office of governor of this state. Among other things he stated in the declaration that he had been a resident of this state for eight and a half years. In 1935, he again applied for a passport to Europe, [346]Ms application referring to the 1927 passport and giving his birthplace as Ukraine, Russia. Also, in 1935, he testified before the naturalization and immigration service that his name was Samuel Adams Darcy; that he was known in California as Sam Darcy and Samuel Adams Darcy; that his address at the time was Jersey City and that he had used this address for several years for personal business, but he was a registered voter in San Francisco. At this time he again gave his birthplace as Ukraine, Russia.
At about the time of the filing of the indictment against appellant by the grand jury, he left this state and went to the State of Pennsylvania, where, on September 19, 1939, he was apprehended and extradition proceedings instituted against him. He resisted these proceedings by resort to the federal courts, without success, and was returned to this state to stand trial.
At his trial he exercised his legal right not to testify. Evidence offered and received on his behalf tended to prove that during his several years residence in this state he commonly used and was known by the name of Sam Darcy; that he followed the calling of journalist and political writer, advocating the principles of the communist party, and was on one occasion the candidate of that party for the office of mayor of San Francisco, and on another, as stated, for that of governor of the state. It is not contended that he used that name for any fraudulent purpose.
Appellant urges various grounds for reversal, namely (1) that the indictment fails to charge the offense of perjury inasmuch as the alleged false statements were immaterial to the proceeding in which they were made; (2) that the making of them was not legally proven, since the record disclosed no willfulness or criminal intent, and was not established by the testimony of two witnesses, or of one witness and proof of corroborating circumstances; (3) that the prosecution failed to confront the appellant' with necessary witnesses, namely, his father (whose record of naturalization was used to establish appellant’s birth in Russia), and the deputy registrar in San Francisco (before whom the alleged false statements were made—and who at the time of the trial was no longer living) ; (4) the erroneous admission or exclusion of evidence, and (5) that by his prosecution and conviction he was denied the equal protection of the law.
The appeal purports to be taken from the judgment [347]and the order denying the motion for a new trial; it is treated and referred to in the briefs of appellant as an appeal from the verdict. It is not in fact such. (People v. Allen, 19 Cal.App.2d 301 [65 P.2d 382]; People v. Boles, 35 Cal.App.2d 461 [95 P.2d 949] ; People v. Richardson, 23 Cal.App.2d 428 [73 P.2d 610]; People v. Arrangoiz, 24 Cal.App.2d 116 [74 P.2d 789].) Judgment was not pronounced; it was suspended, and the defendant on his motion placed on probation. Under such circumstances, it is not necessary to consider the appeal as applying to a judgment or verdict (In re Phillips, 17 Cal.2d 55 [109 P.2d 344]; People v. Marconi, 118 Cal.App. 683 [5 P.2d 974]); the appeal from the order denying appellant’s motion for a new trial remains unaffected. (Penal Code, sec. 1237; People v. Johnston, 37 Cal.App.2d 606 [100 P.2d 307].) An attack upon an indictment, or alleged irregularities occurring before issue of fact joined by plea are not properly matters to be determined on an appeal from an order denying a motion for a new trial. (People v. Duncan, 50 Cal.App.2d 184 [122 P.2d 587]; People v. Turner, 39 Cal. 370), but lack of jurisdiction if disclosed by the pleadings may be raised at any time. The indictment on its face shows the jurisdiction of the court over the defendant for the alleged offense. Any objections relative to extradition proceedings or to the sufficiency of the indictment, upon the ground that certain alleged false statements were immaterial, etc., may not, in view of the necessity of dismissing the appeal from the purported judgment, be considered as an attack upon the indictment. However, the materiality of the alleged statements as presented in evidence will be considered.
The falsity of evidence upon which it is sought to establish perjury must be proved by two witnesses, or by one witness and corroborating circumstances. (Pen. Code, sec. 1103a.) The affidavit containing the perjurious matter was introduced through a deputy registrar of voters. The particular officer who administered the oath to appellant was no longer living at the time of the trial. The deputy witness testified to the official position, and to his familiarity with the signature, of the deceased deputy. Other documents containing the identified signature of “Sam Darcy,” including a declaration of candidacy for governor, were also admitted in evidence.
To prove the falsity of the statement in appellant’s regis- ■ tration affidavit, the naturalization papers of his father, which [348]had also been made a part of the applications for passports, and which showed the name of Dardeck and gave a place of birth different from the affidavit, were introduced. Several applications for passports, signed by appellant under oath and showing a different name and his place of birth as Russia instead of New York, were marked as exhibits. Statements made by him to an immigration inspector in the presence of a special agent of the Department of State of the Government of the United States contained the following: “ Q. Have you at any time registered in the State of California or elsewhere as having been born at New York? A. I don’t think so. My recollection is that I didn’t register as being born in New York, the fact is that I was not born there so why should I register that way. Q. Of what country are you a citizen? A. The United States. Q. How do you claim United States citizenship, on what grounds? A. Upon my father’s citizenship papers.” The foregoing testimony standing alone more than fulfills the requirements of section 1103a, Penal Code, that perjury may be proved by one witness and corroborating circumstances. (People v. Todd, 9 Cal.App.2d 237 [49 P.2d 611]; People v. Curtis, 36 Cal.App.2d 306 [98 P.2d 228] ; People v. Tinnin, 136 Cal.App. 301 [28 P.2d 951]; People v. Davis, 210 Cal. 540 [293 P. 32]; People v. Gray, 52 Cal.App.2d 620 [127 P.2d 72]; People v. Pustau, 39 Cal.App.2d 407 [103 P.2d 224].)
A false statement must be material to the matter at issue and must be made willfully. (Penal Code, sec. 118.) By this section defining perjury, the word “willfully” is used in the sense of knowingly or intentionally and should be differentiated from the same word when used in an indictment charging a fraudulent purpose. To sustain a perjury charge it is not necessary that the false statement be made for the purpose of injuring another. Prom the evidence as recounted the jury could easily conclude, to a moral certainty and beyond reasonable doubt, that the statements in the affidavit of registration were made “willfully.” Whether a false statement has been made willfully or as the result of an honest mistake is a question of fact solely for the jury to decide. (People v. Todd, supra.)
Contrary to the contention of appellant that he was an elector, entitled to vote irrespective of whether he was born in Russia or New York, the statements assigned as perjurious were material as a matter of law. The words “elector” [349]and “voter” are often used interchangeably but there is a difference in meaning. An elector is one who has the qualifications to vote but may not have complied with the legal requirements, that is, the conditions precedent to the exercise of his right to vote. An elector possessed of the necessary constitutional and statutory qualifications is entitled to hold office though his name is not on the great register of voters. (Bergevin v. Curtz, 127 Cal. 86 [59 P. 312].) Appellant argues that if the holding in the Bergevin case is correct, it is immaterial whether he made false statements as to his name and place of birth since he could have accomplished the same result by registering under his real name and giving his correct place of birth.
Under appellant’s analysis, if the person who makes the affidavit actually has the qualifications to vote, it is immaterial whether or not his answers under oath be truthful. Following his theory a person could register under an assumed name and give a false place of birth, and not be subject to a charge of perjury. Information required in registration is material, its purpose being to make sure that only qualified persons register and vote. It is to effect this purpose that such information is required to be given under oath, and it serves as a basis for an investigation of qualifications of a person who registers. Citizenship is a material factor in the right to register, and subsequently to vote. If registrants were permitted to make false statements of the type herein with impunity, election frauds would be furthered. One person could register several times giving different names and places of birth, or varying statements of the basis of his right to vote. The test in a perjury charge is not that injury actually occurred as a result of the false statements, but that the falsehoods could have influenced or changed the status of the subject of the statement to the benefit of the falsifier or the detriment of others. It is sufficiently material if it might have affected the proceeding in or for which it was made. (Pen. Code, sec. 123; People v. Pustau, supra.) In the present instance the Registrar of the City and County of San Francisco was prevented from examining the father’s naturalization papers for the purpose of verifying appellant’s citizenship, and appellant was benefited at least to the extent of eliminating delay in the determination of that ■ question, or trouble and possible embarrassment in explaining the names given or assumed by him.
[350]The law views with abhorrence the use of falsehoods to such an extent that it is no defense to a prosecution for perjury that the oath was administered in an irregular manner. (Pen. Code, see. 121.) A person who, being required by law to make a statement under oath, willfully and knowingly falsifies such statement, purportedly made under oath, in any particular, is guilty of perjury as a matter of law whether or not the oath was in fact taken (see. 129), and regardless of whether the maker knew the materiality of the falsehood (sec. 123), and the offense is complete upon delivery of the affidavit to another person, with the intent that it be uttered or published as true (sec. 124).
It is conceded that appellant did not by legal proceeding change his name from Dardeek to Darcy. The name Darcy was a name particularly assumed by him when in California. Generally in Russia and in New York he went by the name of Dardeek. Appellant contends that a change of name does not necessarily involve a legal proceeding; that one may adopt a name by using it. This method seems to have been approved under certain conditions and stations in life but the change should be with reference to “all affairs.” (Bay v. American Photo Player Co., 46 Cal.App. 311 [189 P. 130]; In re Useldinger, 35 Cal.App.2d 723 [96 P.2d 958].) Usage has sanctioned an assumed business or so-called “stage” name. In some instances, such as in applications for passports the assumed name must be discarded for the original or true name. In registering in California, the “full name,” including Christian or given, and middle name, if any, is required. The place of birth or method of acquiring citizenship should be underlined in the affidavit. The necessity and materiality of giving the true name when registering as a voter has heretofore been considered. In addition it is required that when the last name has been changed by order of court or by marriage, a notation of such fact shall be made upon re-registration. (Pol. Code, see. 1097.) An assumed name is in fact a false name. In requiring the name and place of birth it was never contemplated by the statute that false information should be given.
Since willfulness in the making of the statements was a material issue, affidavits showing birth in a place other than New York were relevant. Other registration affidavits were admissible to show intent.
The rule of right of confrontation has no application to documentary evidence. The claim that prejudicial error [351]was committed in failing to produce the deceased deputy-registrar as a witness needs no comment. Perhaps it would have been well, if possible, to have produced the father of appellant, or to have made a showing of an effort to produce him. However, the method of the father’s naturalization was made a part of appellant’s application for passport. If there was error in this regard, it was trivial and not prejudicial.
Appellant contends that the effect of an amendment to section 1094 of the Political Code was to declare a general amnesty for all perjurious statements in registration affidavits. In substance the amendment provides that on a specified date all affidavits of registration should be cancelled for all purposes. This section was adopted in connection with a permanent registration, the main purpose being to. prevent old registrations being used for voting purposes. “Cancelled for all purposes” simply means for purposes pertaining to future voting; it certainly was not intended to forgive prior crimes of perjury. (Kerr v. Russell, 4 Cal.2d 634 [51 P.2d 1095].) Appellant’s interpretation is answered by the provisions of Political Code section 329 as follows: “The repeal of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment or information and punishment is expressly declared in the repealing act.” There is no express declaration in the amendment cancelling criminal liability. (People v. Barton, 48 Cal.App.2d 565 [119 P.2d 952].)
Finally it is contended that appellant’s conviction constituted a denial of the equal protection of the laws of the United States and of the State of California in that he was singled out for prosecution for the sole reason that he is a communist. An offer was made to show, through certain county clerk assistants and deputy registrars, that hundreds of untruths pertaining to place of birth, etc., appeared in the records of the city and county of San Francisco and elsewhere in the state. At one time appellant offered to show “hundreds of thousands of similar and identical errors in registration” in San Francisco; that in many instances registrants voluntarily or upon notice had corrected the affidavits, and that the only prosecution instituted was against him. He further offered to prove that the police department and the District Attorney of the City and County of San Fran[352]cisco had singled him out because “he is a communist.” The district attorney, under subpoena, was in the court room-but was not sworn as a witness. The record does not disclose that any member in authority of the police department was called as a witness in respect to this matter, or that anyone from that department with any knowledge upon the subject was ever subpoenaed. There is no evidence to show that any city and county or state official ever signed a complaint before a magistrate or otherwise alleging perjury against appellant. He was prosecuted by indictment. There was no offer to prove that the grand jury had singled him out because he is a communist, or that any member of the police department or the district attorney had persuaded or instigated the investigation by the grand jury or the return of the indictment. In those respects the offer of proof was insufficient.
Assuming that any part of the offer was sufficient to support appellant’s contention, we will consider the ease of Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220] relied upon by him. In that case an ordinance of the city and county of San Francisco required persons operating laundries in wooden buildings to obtain licenses. The petitioner was convicted of operating such a business without one. It appeared that licenses had been refused to. all Chinese but had been granted to Caucasians. The court released the petitioner upon the ground that the administration of the ordinance violated the provisions of the constitution in that it made an arbitrary and unjust discrimination, based solely on the question of race, between persons otherwise similarly situated.
The facts and the law are not analogous. If appellant herein, otherwise legally entitled to register, had been refused such privilege solely upon the ground that he was a member of a designated political party, or that he professed a certain creed, or that he was of another than the white race, and subsequently appellant voted or attempted to vote and was prosecuted and convicted therefor, the Yick Wo case might be of some assistance to him. If Yick Wo had made false statements in his application for a license to operate a laundry, and had been charged with perjury in connection therewith instead of with operating such business without a license, a holding that he could make such statements with impunity is inconceivable. The maladministration of the licensing power was the prime reason for the release of Yick Wo. In that ease, referring to the ordinance, the court said (p. 373): [353]“For the eases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the "United States.” In Ah Sin v. Wittman, 198 U.S. 500 [25 S.Ct. 756, 49 L.Ed. 1142], a gambling case, the court refused to follow the ruling in the Yiek Wo case, taking care to differentiate the facts.
Appellant sought to inject a false issue into the trial of the charge, which, if approved, could easily lead to a rule that if some guilty persons escape, others who are apprehended should not be prosecuted. There was no denial of the use of the assumed name and the false designation of place of nativity. Among other defenses appellant sought, by way of offer of proof, an acquittal upon the claim that others equally guilty had not been prosecuted and that he had been prosecuted because he is a communist. The first claim would be equally meritorious if presented in connection with a traffic violation, and the second would establish a precedent that nationality, race or creed might be used in all criminal cases as a defense. Both claims would simply cloud the real issue. The basis of the claim in the Yiek Wo ease was not that petitioner therein had been arrested because he was Chinese, but that he had been refused a license on account of his nationality. There was an apparent scheme or plan to keep Chinese from operating laundries. Attention has not been called to any offer of proof indicating that there was a scheme to prohibit communists from registering. California has recently been presented with a similar theory as developed by the appellants in People v. Montgomery, 47 Cal.App.2d 1 [117 P.2d 437]. In that case it was held that the decision in the Yiek Wo case does not endorse the proposition that one charged with crime may justly complain because others who have committed the same offense, and are known to the authorities, are not brought to trial. The court said there was an obvious distinction between extending protection to persons of Chi[354]nese nationality, in pursuit of the harmless and somewhat necessary business of laundering, and the extension of a like protection to those engaged in the vicious social evil of pandering. Whatever may be said relative to the proposed defense in a pandering charge may certainly with equal propriety be said of the offense of perjury, a crime per se.
The purported appeal from the judgment is dismissed. The order denying the motion for a new trial is affirmed.
Knight, J., concurred.