People v. Carnicle

ARCHBALD, J.,

pro

tern.

Defendant was charged in an information containing two counts with the crimes of

[325]

perjury and forgery, respectively. Prom judgments of conviction entered on verdicts of guilty as to each count defendant has appealed.

After allegations sufficiently showing that the alleged false statements were made -in a trial before a competent tribunal and under oath, the information charges “that the said Vivian H. Carnicle, being so sworn to testify truthfully, she, the said Vivian H. Carnicle, did then and there in said trial, action and proceeding, wilfully, knowingly, corruptly, falsely and contrary to said oath swear, take oath, say and give in evidence among other things answers to the questions then and there propounded to her as a witness in substance as follows, towit ...” The information then sets out a partial transcript of the testimony given by defendant at said former trial, continuing: “That the said false testimony, statements and things sworn to and given in evidence as aforesaid . . . was and were then and there material to the issues tendered in said cause then pending and on trial. That in truth and in fact as she, the said Vivian H. Carnicle, then and there well knew, the said testimony, statements and things so given and sworn to by the said Vivian H. Carnicle, as hereinbefore set forth, were then and there false, untrue and material to the matters then and there on trial ...”

Appellant urges that the information is fatally defective in that nowhere in it is there an averment which negatives the truth of the alleged false swearing by stating facts by way of antithesis. An indictment using substantially the same language in its assignment of perjury as the information here was questioned in the same way in the case of

People

v.

Rodley,

131 Cal. 240 [63 Pac. 351], and the court on page 249 of its opinion says: “The requirement of the law as to ‘assignment of perjury’. is found in section 966 of the Penal Code, and requires only that there be ‘ proper allegations of the falsity of the matter on which the perjury is assigned’. The allegations to the effect that the statements made by defendant were then and there false and untrue and known by him to be so false and untrue are, we think, in the absence of a demurrer, a sufficient assignment of perjury under the code provisions above cited. ... It seems plain here that the indictment states facts constituting" an offense, and the worst that can