People v. Wells

Garoutte, J. The appellant has been convicted of the crime of perjury, and now appeals from the judgment and order denying his motion for a new trial.

Section 1968 of the Code of Civil Procedure provides that perjury must be proved by the testimony of two witnesses, or one witness and corroborating circumstances. This declaration of the code clearly means that the falsity of the accused’s statements must be shown to the jury by the positive testimony of two witnesses, or of one witness and circumstances corroborating the statement of such witness, in order that the defendant may be legally convicted of the crime of per[632]jury. In other words, the law prescribes a different rule of evidence' in this class of cases, both as to the kind and amount, as compared to the great majority of violations of the law. The rule is different as to the kind of evidence, for positive evidence is absolutely necessary, and circumstantial evidence alone is never sufficient.’ Again, for nearly all violations of the law, the evidence of one credible witness is sufficient to support a conviction; but in prosecutions for perjury the rule is clearly to the contrary.

In the present case, one Dillwood was upon trial charged with grand larceny in stealing a cow, the cow being found in Dillwood’s barn about eleven o’clock, A. m., and having been stolen some miles away upon the previous night. The defendant in this case appeared at the trial as a witness in Dillwood’s interest, and testified that .about eight a. m. of the same morning he was traveling in his cart upon the public highway near Dillwood’s house, and met this cow upon a bridge, the cow then going towards Dillwood’s house, and that he then saw Dillwood drive the cow into his barn, and at that time Dillwood stated that the cow was not his cow. It was alleged in the information that this testimony was false, and the charge of perjury is based thereon. We will not enter into a discussion as to the materiality of this evidence as bearing upon the grand larceny charge, but will concede it to be material. It is then left for us to consider the sufficiency of the evidence introduced at this trial to support the verdict.

As we have already suggested, in order that the evidence may be sufficient, there must be positive testimony to a contrary state of facts from that sworn to by the defendant at the previous trial. For instance, to support the charge of perjury as to the alleged false statement of defendant that he met the cow at the time stated upon this particular public highway, it was necessary to produce the positive testimony of one witness at least that such meeting did not take place, as that the defendant was not at that time at that place, or that