People v. Craven-Fair

THE COURT.

Defendant was accused by indictment, charging her with perjury, committed in the city and county of San Francisco. The indictment was set aside, on motion of defendant, and plaintiff appeals. During the course of the proceedings in the administration of the estate of James G. Fair, deceased, this defendant filed a petition for an allowance as widow of deceased. At the hearing before Judge Troutt, in Department 10 of the superior court, defendant gave testimony in support of her petition. This testimony was thought to be false, and the district attorney caused an investigation thereof to be made by the grand jury. Defendant was called as a witness before said grand jury, and then and there testified to certain facts as to her marriage with said Fair, which the indictment alleged to be false and to constitute perjury. In passing upon the motion to set aside the indictment, the lower court found: “First, that it affirmatively appeared from the record herein that at the time of finding the indictment herein and prior thereto, the grand jury was engaged exclusively in investigating the question as to whether the said defendant had committed perjury in the month of February, 1900, in her testimony given before Judge Troutt, in Department 10 of this court, upon her application for family allowance; second, that no testimony was taken before the grand jury who found the indictment herein, as to the testimony of said defendant, Nettie R. Fair, given before said grand jury.”

It is claimed that, in testifying to her marriage, defendant, as is true of any other witness, was entitled to the presumption that she spoke the truth (Code Civ. Proc., sec. 1897); and she was also, as the accused, entitled to the further presumption of innocence (Code Civ. Proc., see. 1963). And it is contended that there should have been some evidence other than her own testimony brought to the attention of the grand jury tending to show that defendant had sworn falsely before them in the particular matter charged as false, without which

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there was in fact no evidence at all that she had committed perjury. Section 921 of the Penal Code is cited, which provides : "The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradieted, would, in their judgment, warrant a conviction by a trial jury.” And it is urged that this section clearly implies that if the testimony of the witness is uncontradieted, the grand jury cannot say he has committed perjury.