People v. Carroll

[655]

KERRIGAN, J.

Defendant was charged by indictment with the violation of section 64b of the Penal Code. He was tried, convicted, and sentenced. This appeal is from the judgment and from an order denying his motion for a new trial.

The indictment in part alleges that the defendant made a false affidavit, which was attached to a section of a petition for a recall election; that the affidavit was knowingly false in averring that no person signed said section of the petition except in the presence of the deponent, and that to the best of his knowledge and belief each signature to the petition was the genuine signature of the person whose name purported to be thereunto subscribed, whereas, according to the charge of the indictment, said signatures were in fact procured, solicited by, and made in the presence of a person other than the defendant. It also alleges that the affidavit attached to said section of the recall petition was filed in the office of the registrar of voters of the city and county of San Francisco.

Section 64b declares a number of acts to be unlawful, subdivision 1 thereof making it unlawful for any person who circulates any petition authorized or provided for “by the constitution or laws of the state of California regulating the initiative, referendum or recall” to misrepresent or make any false statement concerning the contents or effect of any such petition to any person to whom it is presented for signature. Other subdivisions of the section are immaterial to the question involved in this case, but subdivision 5, upon which this indictment is based, reads'as follows: “It shall be unlawful for any person to make any false affidavit concerning any petition mentioned in this section or the signature appended thereto.”

We cannot agree with appellant in his contention that a reading of section 64b, and particularly of subdivision 1 thereof, shows that the legislature intended that the act should apply exclusively to state initiative, referendum and recall elections. The section is broad in its terms; and we perceive no reason for holding that it is not as general in its application as any other section of the Penal Code. Moreover, the charter of the city and county of San Francisco, under which the contemplated election was to be held, is, like section 64b of the Penal Code, a state law. In the case of