In Re Clark

JAMES, J.

By this proceeding petitioner seeks to be discharged from the custody of the sheriff of the county of Kings, by whom he is held under a commitment issued by a justice of the peace of said county. After proceedings had before the justice, defendant was held to answer to the superior court on a charge of perjury. Following the making of that order by the magistrate, the district attorney filed his information in' the superior court. It is here claimed that the commitment was made without reasonable or probable cause. The record of the proceédings had and testimony taken before the justice of the peace on the preliminary examination of petitioner is made a part of the petition. ' We think that the contention of petitioner is well made and that he is entitled to be discharged from custody.

[1]

It appears that the charge of -perjury was based upon testimony given by petitioner in a criminal action wherein petitioner was charged with having conducted the game of “stud-horse poker” which is prohibited by the terms of section 330 of the Penal Code. In the complaint for perjury it was charged that petitioner, having been called as a witness in his own behalf in the criminal action mentioned, falsely testified and stated under oath that he had not conducted or played in said game. In order that a charge of perjury be made out against the petitioner, it was necessary that the alleged false testimony had been given in a judicial proceeding and that the same was material to a valid issue properly made therein. If the complaint in the gaming case failed to charge a public offense, as is asserted, then the testimony of petitioner would not amount to perjury as that crime is defined by the statute. The complaint in the gaming case in its charging part declared as follows: “Said defendant did then and there wilfully and unlawfully, open up and conduct a gambling game, to-wit, stud horse poker, in the town of Armona, County of Kings, State of California, in violation of Section 330 of the Penal Code of the State of California.” In section 330 of the Penal Code it is made a misdemeanor for persons to deal, play, carry on, open, or conduct certain games enumerated by name, including “stud-horse poker,”

[509]

after which, and separated by a comma, is the following: “or any banking or percentage game played with cards, dice or any device, for money, checks, credit, or other representative of value.”