Benson v. Superior Court

TRAYNOR, J.

Petitioner seeks a writ of prohibition to restrain the Superior Court of Los Angeles County from taking further proceedings against him under a count of an indictment charging him with soliciting perjured testimony in violation of Penal Code section 653f .

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The Department of Social Welfare had been conducting an investigation of adoption practices in Los Angeles County. Mrs. Evelyn Scheingold, an investigator, visited petitioner, an attorney, and told him that she was pregnant, that she wished to have the child adopted, and that the child’s father was

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unknown, since she had been living with her husband and another man. The husband’s consent would normally be necessary for an adoption, for a legitimate child “cannot be adopted without the consent of its parents. ...” (Civ. Code, §§ 224, 226.) To make the husband’s consent unnecessary, the wife must show that she is not cohabiting with him (Code Civ. Proe., § 1962, subd. 5) and must rebut the statutory presumptions favoring the child’s legitimacy. (Civ. Code, §§ 193, 194 ; Code Civ. Proc., § 1963, subd. 31.) In a custody proceeding the wife may present testimony establishing that she has lived apart from her husband for a sufficient length of time to rebut the presumptions that the husband is the child’s father.

Mrs. Scheingold testified before the grand jury that in contemplation of a custody proceeding petitioner said to her: “ ‘There are ways of getting around the law, and I’m the only lawyer in town who knows how to do it.’ He said, ‘I will help you get a witness to establish that your husband could not have been the father. I know how to get around these Courts. ’ ’ ’ She testified further: “I said, ‘Mr. Benson, my big problem is how I am going to get a witness to testify that I have not been with my husband for a period of time.’

“He said, ‘You have a girl friend here, haven’t you?’

“I said, ‘Yes, but I am afraid she may say the wrong things. She’s pretty nervous.’

“Mr. Benson said, ‘Don’t worry. I’ll talk to her. She will say the right things. ’ ”

Subsequently, Mrs. Scheingold introduced Miss Terri Pallato, a fellow investigator, to petitioner as a friend. Mrs. Scheingold testified that Miss Pallato, “told Mr. Benson that she had never seen my husband, that she did not know him, that she did not know whether or not this was his baby, but she was willing to swear in the affirmative to both of these points. . . .