People v. Ross

Van Fleet, J. The information in this case does not state a public offense. The crime with which it seeks to charge defendant is subornation of perjury, and it is well established that to constitute this offense all the essential elements constituting the crime of perjury must be stated. (2 Bishop’s Criminal Procedure, secs. 1020, 1021; United States v. Wilcox, 4 Blatchf. 393; Coyne v. People, 124 Ill. 17; 7 Am. St. Rep. 324; United States v. Evans, 2 West Coast Rep., 611; United States v. Dennee, 3 Woods, 39.) In several essentials the information falls short of this requirement. It is lengthy and somewhat confused, and contains much redundant matter and many immaterial recitals and repetitions, but the substance of the charge is that in a contest in the superior court of San Joaquin county, of the will of one Joseph McKenney, deceased, in which Isabella McKenney was contestant, the defendant, Ross, in the interest of said contestant, and for the purpose and end of having her declared and adjudged the widow of said deceased, and entitled to share in his estate, procured one Ida Maud Nicholaus to appear as a witness at the trial, and falsely swear on behalf of said contestant, Isabella McKenney, that she, said Ida Maud Nicholaus was married to the said Joseph McKenney in his lifetime, and was then at the time of said trial the widow of said deceased. From this it sufficiently appears, perhaps, that the issue upon which the false testimony was given was material, but it is nowhere alleged that the evidence of the suborned witness was material to that issue; nor is that fact made manifest from the evidence alleged to have been given. In one form or the other this fact must be made to appear—either by direct averment or ' by stating evidence given by the witness, which the court can judicially say was material. (People v. Brilliant, 58 Cal. 218; 2 Bishop’s Criminal Procedure, sec. 921; Commonwealth v. Pollard, 12 Met. 225; Hoch v. [427].People, 3 Mich. 554.) How can we say that the false testimony here alleged was necessarily material? It is alleged that defendant procured the witness to falsely testify that she, the witness, was the widow of the deceased, McKenney, for the purpose of establishing the fact that Isabella McKenney was the widow of the deceased. This testimony would not have any necessary tendency to prove that fact, and if not it would not be necessarily material. If the fact had been alleged, which appears elsewhere in the record, that Ida Maud Nicholaus and Isabella McKenney, the contestant, were one and the same person, the materiality of the evidence might be apparent on the face of the pleading; but there being no such averment, that fact cannot be regarded in testing the sufficiency of the information.