People v. Chiuminatta

BARNARD, P. J.

The defendant was indicted by the grand jury on three counts of perjury. In the first count she was charged with falsely swearing to a complaint charging her husband with a violation of section 245 of the Penal Code. In the second count, she was charged with falsely swearing at the preliminary hearing of the ease against her husband that her husband on January 27, 1957, had hit her about the face and head while she lay on the floor and had dragged her through the house by her hair. In the third count it was charged that she wilfully committed perjury at the trial of her husband in the superior court by falsely testifying that on the occasion in question her husband did not hit her about the face and head while she was on the floor and that he had.

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not dragged her through the house by her hair, when she knew that this testimony was false and untrue.

The defendant pleaded not guilty to each count and on motion of the district attorney the first count of the indictment was dismissed. At the time set for trial it was stipulated that the cause be tried by the court without a jury, and that it be submitted on the transcript of the proceeding before the grand jury. The court found the defendant not guilty on the second count of the indictment and guilty on the third count. At the time set for pronouncing judgment the court stayed further proceedings for the purpose of granting probation, and granted probation to the defendant on the conditions that upon her release she seek psychiatric treatment, that she not leave the state, that she violate no law, and that she report to the probation officer once a month. The defendant has appealed from the “judgment of conviction.”

The sole point raised on the appeal is that the evidence was not sufficient to prove a corpus delicti in this ease or to sustain the conviction of the defendant. It is argued that the evidence was not sufficient to meet the requirement of section 1103a of the Penal Code, which provides that perjury must be proved by the testimony of two witnesses or of one witness and corroborating circumstances; and that there was no direct evidence as to which of the conflicting statements made by the defendant was in fact true.

Prom the transcript of the evidence before the grand jury it appears that a deputy sheriff interviewed the defendant on January 28, 1957. He testified that at that time she had “black eyes, and bruises about the face and lips, a bruised up nose, pretty well bruised up,” and that she signed a written statement at that time. In this statement, which was read into the record, she stated that on January 27 her husband had knocked her off a stool and she fell to the floor, that he “drug” her to the front door, and that he kept on hitting her while she was on the floor. A clerk of the municipal court testified that at the preliminary hearing of her husband on January 31, 1957, the defendant was duly sworn, and a court reporter who took down her testimony read the same into the record. It appears therefrom that the defendant there testified that she was sitting in the dining room of her home and the defendant knocked her off a stool; that while she was on the floor he kept hitting her across the face and head and on the ears; and that “he drug me all through the house by the hair.” There was evidence that she was duly sworn