People v. Wong Fook Sam

ANGELLOTTI, J.

The defendant was convicted of perjury, and appeals from, the judgment. There is no bill of exceptions, the appeal being on the judgment-roll alone.

The only point made for reversal is, that the court erred in instructing the jury as follows, viz.: ‘ ‘ The only question for you to determine is, was it true or false. ... If you are satisfied beyond all reasonable doubt by the testimony of two witnesses, or by the testimony of one witness and corroborating circumstances, that the testimony given in that trial was false, your verdict in that case would be ‘We, the jury, find the defendant guilty as charged in the information.’ ”

The contention is, that this instruction omits an essential element of the crime of perjury,—viz., that the testimony upon which the charge is based was not only false, but was willfully given, with the intent that it should be taken as true, and was given with the knowledge on the part of the witness that it was false. It is not disputed that this was an essential element. (People v.

Von Tiedeman,

120 Cal. 128, and cases there cited.) The code, in defining perjury, provides that “Every person who, having taken an oath that he will testify . . . truly . . .

willfully and contrary to such oath states as true any material matter which he knows to he false,

is guilty of perjury.” (Pen. Code, sec. 118.) The information against defendant was drawn in accordance with this well-settled principle, charging not only that the testimony was false, but that it was willfully given, with the knowledge on the part of the defendant that it was false and untrue.

It is, however, a well-established rule that, in the absence of the evidence, this court will, not reverse a judgment for the giving of an instruction, unless such instruction would be erroneous in every conceivable state of the case.

(People

v.

Mendenhall,

135 Cal. 344, 347;

People

v.

Strong,

46 Cal. 302;

People