People v. Hitchcock

Haynes, C. The defendant was indicted for perjury. The indictment appears to have been copied in part from the case of People v. Ah Bean, 77 Cal. 12. The opinion in that case set out the material part, of the, indictment, and in it occurs the expression,Did in a, manner material to the issue.” The word “ manner” is evidently a misprint, in that case, for the word “ matter.”. Here the word “manner” is used in the indictment.. [484]The indictment was not demurred to. At the close of the evidence on behalf of the people the defendant moved the court to instruct the jury to acquit the defendant upon the ground that the information did not state facts sufficient to constitute a public offense, and then first raised the question as to the use of the word “manner” instead of “matter.”

The indictment was in other respects sufficient, and in some particulars less open to criticism than that against Ah Bean. If the district attorney had read the opinion of the learned chief justice in- that case he would have seen that it was an error of the printer, as he afterward used the word “ matter” in precisely the 6ame connection.

We do not think appellant or his counsel could have been misled or prejudiced by the error, as it was clearly alleged that the false testimony was given upon the preliminary examination of George B. Hall on a charge of .murder, and set out the evidence given by appellant on such examination,- showing on its face that the evidence so given was material to the issue, and, that appearing, it appeared upon the face of the indictment that the testimony so given was in a “ matter” material to the issue.

We do not intend to encourage carelessness in criminal pleading, but where a defect in an indictment or information is merely technical, and does not affect the substantial rights of the parties, we are not at liberty to reverse the judgment. (Pen. Code, sec. 1258.)

The testimony of appellant given upon the examination of Hall, as set out in the indictment, was clearly material. The issue there was whether Hall was probably guilty of the murder of Anderson. The killing of Anderson was therefore in issue. The record here does not show that Hall admitted the killing, but if it did it would not affect the question, since an admission of a fact does not tend to show that it was not in issue. It was not only alleged to have been material, but was proven to be so upon the trial.