People v. Barry

Morrison, C. J. An information was filed against the defendant charging him with the crime of perjury, and a conviction being had an appeal has been taken to this court.

The defendant filed a demurrer to the information, which was overruled by the court; and the first question presented for our consideration relates to the sufficiency of the information.

By § 118 of the Penal Code it is provided that “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 cases in which such an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false, is guilty of perjury.”

Bishop in his work on Criminal Procedure, vol. 2, § 901, says: “ The elements of this offense to be alleged and proved are—

“1. A judicial proceeding or course of justice;

“2. The defendant having been sworn to give evidence therein;

“3. His testimony;

“ 4. Its falsity ;

“ 5. Its materiality to the issue or point of inquiry.”

An examination of the information upon which the defendant was tried and convicted will show that it contains all of the elements above stated as constituting perjury at common law.

It is averred therein that the case of The People v. Isaac M. Kalloch, charged with the murder of one Charles De Young, was on trial in the Superior Court of the city and county of San Francisco, a court having jurisdiction thereof; that on the trial the defendant was called, duly sworn and examined, as a witness on behalf of the defense; that on said trial he gave certain evidence, which is set forth in the information; that such evidence was false; that the defendant knew at the time it was given that it was false; and lastly that it was material to the issue or inquiry. The materiality of the false evidence upon which the charge of perjury was predicated is questioned on the appeal, and we will briefly consider it.

[64]On the trial of Isaac M. Kalloch for the murder of Charles De Young, it became a material inquiry in the case -whether or not De Young fired a shot at Kalloch before the latter fired at De Young, and on that trial Barry testified that he did. He was then asked if he (Barry) had not stated in a conversation at a designated time and place, and in the presence of certain persons named, that upon the occasion of the shooting of De Young he, the said defendant Barry, saw Kalloch fire the first shot? He denied having made such statement. Was this a material inquiry, and could a false oath in respect to such a matter amount to peijury?