People v. Naylor

Foote, C. The defendant was accused by an information of perjury. A demurrer was interposed on the ground that the information did not substantially conform to sections 950, 951, and 952 of the Penal Code; that it did not state facts sufficient to constitute a public offense. The demurrer was sustained, and from the judgment rendered the people appeal.

The sections of the code, with which it is alleged the information does not comply, contain a few plain rules tending to simplify the method of charging offenses by information or indictment. The information in question, taking it in its entirety, seems to charge that the defendant has committed perjury by corruptly and collusively (through an agreement with a certain creditor named Foss) omitting such creditor from the inventory which the law required him to make as a part of his assignment as an insolvent, under title 3, part 2, division 4, of the Civil Code, which inventory was filed in the proper public office, and sworn to by affidavit in due form before the proper officer, which was attached to the inventory and filed with it, and which affidavit was false, in that the defendant swore in it that his inventory was [609]“just and true,” when he well knew it to be false and corrupt.

The law required that all creditors of the insolvent should be shown by the inventory, and that the oath that it was “ true and correct ” should be taken, annexed to, and filed with the inventory. If, then, such an inventory was prepared which purported to show all the defendant’s creditors, and it was sworn to as “just and true,” annexed and filed as required, and a collusive agreement had been entered into by which the creditor was omitted from the inventory, and the oath was false, it would appear that the defendant was charged properly with perjury, if it was further charged that the false oath was as to a material matter. It is charged that the matter falsely sworn to was material, but the defendant claims that the fact that Foss was a creditor, and was omitted from the inventory by his consent, would render the omission immaterial; that Foss could not profit by it as against other creditors, and that they would not suffer by reason of such omission.

It may be remarked, in passing, that this kind of argument admits that the information shows that there were other creditors named in the inventory, and this nullifies the defendant’s contention, viz., that it does not appear from the information that he .is charged with having made such an inventory as purported to show all his creditors as the law requires, because from the information it does not appear that .he had any 'other creditor than Foss.