People v. Dixon

California Court of Appeal Aug 21, 1950 No. Crim. 2651Published

Before: Dooling

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Holding. The court held that a perjury conviction based on testimony given as an opinion or belief is satisfied by direct evidence contradicting the facts underlying that opinion, provided there is corroborating evidence that the defendant did not actually hold that belief.

Issues

Whether testimony given as an opinion or belief satisfies the requirement for direct evidence of falsity in a perjury prosecution.
Whether the evidence was sufficient to support the perjury conviction.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The California cases require direct, as distinguished from circumstantial, evidence of the falsity of defendant’s testimony by at least one witness.”

“If a person willfully swears falsely to a belief in the existence of a fact which he knows does not exist he is as guilty of perjury as if he had sworn directly to the existence of a fact which he knew did not exist.”

DOOLING, J.

The defendant was convicted on two counts of perjury and from the judgment and order denying his motion for new trial he prosecutes this appeal.

Appellant was the driver of an ambulance which was in an intersection collision resulting in an action for damages. That action was tried twice and in each trial appellant was a witness. He testified as to the speed of the ambulance on the first trial: “I can’t—cannot, so I can’t give a definite speed because I was not looking at the speedometer, but I would estimate that the car was doing between 20 and 30 miles an hour.”

Referring to Frederick, the driver of the other ear, he testified: “They were still in the car and didn’t seem to be hurt or anything, appeared to be drinking, all seemed awfully happy ... Yes, I spoke to Mr. Frederick . . . When I got to the hospital he was down there, I could smell, seemed to me I could smell it on his breath.”

At the second trial the appellant testified: “I couldn’t say the exact speed, I would estimate between 20 and 30 miles per hour.”

The second trial resulted in a verdict for defendants and appellant swore to an affidavit which was used by plaintiff in that action in support of a motion for a new trial in which he stated under oath:

1 ‘ The true facts are that: . . . I did not know whether or not Mr. Frederick was drinking; the ambulance was traveling at better than 50 miles per hour just prior to the accident . . .

“At the second trial of the case I falsely testified to substantially the same facts as in the first trial as above set forth, except that I did not testify in regard to the intoxication of Mr. Frederick. ...”

This affidavit, was made the basis of a third count of perjury on which defendant was acquitted.

Frederick was called as a witness and testified that at the

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time of the accident: “I would estimate it (the speed of the ambulance) at about 50 miles an hour.” He gave further testimony that at that time he was not intoxicated, had not consumed any intoxicating liquor for several hours, and had no odor of alcohol about him.

People v. Dixon

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DOOLING, J.

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