Leonard v. Superior Court

THOMPSON, J.

This is a petition for a writ of mandate compelling the Superior Court of the City and County of San Francisco, and Honorable I. L. Harris, judge presiding therein, to dismiss an indictment pending therein and to discharge the defendants.

On August 21, 1931, the grand jury of the city and county of San Francisco presented and returned to the Superior Court and to the judge presiding in department 12 thereof, a true bill and indictment charging the petitioners, George L. Leonard and Joseph A. Leonard, with perjury as defined by section 10.04 of the Building and Loan Association Act, in that on October 14, 1931, as required by law, they filed with the building and loan commissioner of the state of California a statement under oath of the condition as of September 30, 1931, of the Union Building and Loan Association, of which petitioner George L. Leonard was president and petitioner Joseph A. Leonard was secretary, they having sworn before a notary public that said statement and report and the items contained therein were true and correct, whereas in fact and in truth certain material statements therein contained were false and known to the defendants to be false. The indictment was demurred to both generally and specially, and on December 3-, 1934, the demurrer was sustained on the ground there was no allegation of “wilfulness” therein. The trial

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court referred the indictment back to the grand jury for amendment. On December 20, 1934, an amended indictment was filed alleging that the defendants “wilfully, fraudulently and falsely” made and filed such report and statement. The petitioners filed a motion to quash and set aside the amended indictment on the ground that the same was a

new

indictment and not an amended indictment, and that on the face of the indictment it appeared that the statute of limitations had run against it. The motion to set aside and quash was denied and thereupon the petitioners filed a demurrer which was overruled, and the defendants ordered, to plead to the amended indictment. The defendants entered pleas of “Not Guilty”, together with a further plea of “former acquittal” therein. Trial was set for May 13, 1935, and it is alleged that it is the intention of the trial court to proceed with the trial of the defendants and petitioners herein unless a writ of mandate be granted ordering the Superior Court to dismiss the amended indictment and to discharge the defendants, it being their contention that neither the original nor the amended indictment returned state a public offense; that both indictments lack in material allegations and matters in that the oath alleged to have been taken by defendants is not the form of oath prescribed by law and that perjury may not be predicated thereon; and that the original indictment does not state, nor is it alleged therein that the defendants “wilfully” swore falsely to the report and statement filed or wilfully committed the offense of perjury charged; that the so-called amended indictment of December 20, 1934, is, in fact, a new indictment and not an amended indictment; that it affirmatively appears on the face of the amended indictment that the offense charged therein, and the prosecution thereof, is barred by the statute of limitations; that by reason thereof the respondent court and judge thereof have no right, authority or discretion to try the petitioners thereon, or -to try them for the commission of the crime of perjury, and that it is the duty of the said judge to quash, dismiss and set aside the amended indictment and to discharge the defendants; that petitioners have no plain, speedy or adequate remedy in the ordinary course of law and are compelled to ask for an alternative writ of mandate commanding the Superior Court and the judge presiding therein to dismiss the indictment and discharge the petitioners.