People v. Parent

LORIGAN, J.

Defendant was convicted of perjury,'1' moved for a new trial, and in arrest of judgment, and from the orders denying them both appeals.

Appellant and six others were on trial in the superior court of Madera County, jointly charged with “an assault by means and force likely to do bodily harm upon one W. C. Sellars.” At that trial the charge against appellant was dismissed, and he was called as a witness for the prosecution, and it is upon his testimony given as such witness that this charge of perjury is predicated.

Two grounds are urged for reversal. It is insisted,—1. That the alleged oath taken by the defendant upon the trial, when it is claimed the perjury was committed, was not suffi

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dent in law upon which to base a charge of perjury; and 2. That the testimony in the present case was insufficient to fill the requirements of section 1968 of the Code of Civil Procedure, which provides that perjury must be proven by the testimony of two witnesses, or one witness and corroborating circumstances, before a jury is warranted in finding a verdict of guilty.

The first point arises from the fact that the oath administered to the defendant was in the form provided by section 2094 of the Code of Civil Procedure, as amended March 8, 1901. (Code Commissioners’ Code, which was declared unconstitutional in

Lewis

v.

Dunne,

134 Cal. 291.

1

)

The legal form of oath, as prescribed by section 2094, is: “You do solemnly swear (or affirm, as the case may be) that the evidence you shall give in this issue (or matter) pending between - and -, shall be the truth, the whole truth, and nothing but the truth, so help you God.” The only difference between the oath as above prescribed and the one provided in the unconstitutional amendment of 1901, and which was taken by the defendant, consisted in the omission from the latter of the invocation for God’s help, represented by the words “so help you God.”