People v. White

DOOLING, J.

Appellant was convicted by a jury on each of five counts of perjury. The basis of the convictions was that appellant executed five affidavits, each attached to' a petition to submit a proposed amendment to the charter of the city of Santa Cruz, in each of which he falsely stated that he was the person who circulated the petition to which the affidavit was attached and that all of the signatures to such petition were made in his presence.

It is established that to support a conviction of perjury the false oath must be one authorized or required by law

(People

v.

Brophy,

49 Cal.App.2d 15 [120 P.2d 946];

People

v.

French,

134 Cal.App. 694, 698-699 [26 P.2d 310];

People

v.

Millsap,

85 Cal.App. 732 [260 P. 378]; 70 C.J.S., Perjury, § 20a, p. 476), and the crucial question in this case is whether there is any statutory authorization or requirement in California that an affidavit, swearing to the facts here found by the jury to be false, be annexed to a petition proposing an amendment to a city charter.

It is not claimed by the attorney general that there is any statutory provision expressly authorizing or requiring such an affidavit in the case of a petition to amend a city charter. Section 8, subdivision h, article XI of the state Constitution, which sets forth the manner of proposing such amendments, contains no reference to an affidavit, nor does article 3 of chapter 3, division 4 of the Elections Code (§§ 1801-1806), which deals specifically with “Freeholders’ Charter Amendments.” Section 1806 provides: “The petition shall be in substantially the following form” and then sets out a form of petition

without awy affidavit.

Section 1805 provides: “Each signer of the petition shall sign it in the manner prescribed by Section 45 of this Code. ’ ’ Section 45, which deals with the manner of signing of all petitions required to be

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