People v. John

'TEMPLE, J.—The

The defendant was convicted of perjury in swearing to a complaint before a magistrate, charging one Lai

[221]

Ha with grand larceny. It is contended that the information fails to charge the defendant with the crime, because it is not stated that the affidavit was delivered to any one to be uttered, nor that it was filed or used by the magistrate, or that it affected the proceedings in any way.

Counsel is clearly in error. Section 124 of the Penal Code has no application to the ease. When defendant subscribed the affidavit and took the oath, he inaugurated a prosecution. As it charged an offense which was within the jurisdiction of the justice of the peace as an examining magistrate, it became at once the duty of the justice to issue the warrant of arrest. Filing was not required, and it never was in the custody of the defendant, nor had he the power to deliver or to withhold it.

People

v. Robles, 117 Cal. 681, has no application.

But the court erred in admitting the evidence of what the defendant had testified at the preliminary examination. The testimony was offered for the purpose of impeaching the defendant as a witness in his own behalf, and was objected to as incompetent. What transpired is thus correctly set forth by the attorney-general in respondent’s brief:—

“The defendant’s testimony given in folios 306-325 was fully put in evidence in this manner:

“First, the interpreter testified that he accurately stated in English, at the examination, all that the defendant said in Chinese.

“Second, the official stenographer then testified to every word which the interpreter had stated.

“By this method, the exact words of the defendant were conveyed through the double medium of the interpreter and the stenographer to the jury; neither of them alone could have accomplished this result.”

Respondent contends that this ease does not fall within the case of

People

v.