People v. Simpton

COOPER, C.

This appeal is by the people from an order sustaining defendant’s demurrer to the indictment.

The indictment attempted to charge the defendant with the crime of perjury, in making a certain affidavit in the matter of the estate of James G. Fair, deceased, in a proceeding entitled “ Petition of Nettie R. Fair for a family allowance.” The main contention in support of the ruling of the lower court is, that the indictment fails to show that an oath was taken by or administered to defendant. The indictment is quite lengthy, and it is necessary to state herein only the portion of it bearing upon the point under discussion, and it is not necessary to discuss other questions raised by counsel, for the reason that the demurrer was properly sustained upon the grounds herein given. The part of the indictment material here is as follows: —

“And the jurors aforesaid on their said oaths do say that on or about the said twelfth day of August, 1899, at the said city and county of San Francisco, state of California, the said G. W. Simpton, before one Harry J. Lask, a notary public in and for said city and county of San Francisco, state of California, residing therein, and duly commissioned and sworn, and then and there duly authorized by law to administer oaths, and authorized by law to administer an oath to the said G. W. Simpton, did then and there willfully, corruptly, knowingly, falsely, and feloniously swear, take oath, and make his affidavit, and state matters material in said proceeding as true, which he knew to be false, and did then and there depose and swear, in substance, as follows.”

The Penal Code provides: “ Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the

[369]

cases in which such an oath may by law be administered, willfully and contrary to such oath states as true any material matter which he knows to be false, is guilty of perjury.”

It is evident from the definition of perjury contained in said section that it is of the very essence of the offense that the person alleged to have committed the crime must have been first duly sworn that he would “ testify, depose, or certify truly” before a competent tribunal, officer, or person. There is no pretense of a statement that defendant was sworn to “testify truly ” in said matter. He must have been first duly sworn to “testify or depose truly,”before he could have been guilty of perjury in not testifying truly. The words, “ swear, take oath, and make his affidavit,” are not equivalent to an averment that he was “ duly sworn to testify truly.” It is not even alleged that any party administered an oath to defendant. If he “ took oath ” by having it administered by some other notary public, or magistrate, in the presence of Lask, or if he took it by solemn vow made to himself, it might be true that he took oath before Lask. It is essential that an indictment shall state every fact and circumstance necessary to constitute the offense charged, in direct and positive language. If not in the words of the statute, it must be by plain and direct words which are equivalent. It must clearly appear upon the face of the indictment that a crime has been committed. No imagination nor presumption can be called in to aid a defective indictment. If the facts stated may be true, and yet may or may not constitute a crime, the presumption is that' no crime has been charged.