People v. Strassman

Henshaw, J. Defendant was indicted for, and convicted of, the crime of perjury.

It was charged that in qualifying as a surety upon the bail bond of one Kate Farley, who had been held to answer upon a charge of grand larceny, the defendant falsely swore that he was the owner of a certain piece of real property in the city and county of San Francisco.

1. Upon the trial, evidence was introduced which traced the record title to the property into one Hilda Strassman, more than a year before the date of the alleged perjury. Here the evidence of ownership came to an end. No witnesses were called to prove, and no other evidence was introduced to show, who was the [687]owner, or in possession of the property, at the time when defendant made affidavit to his ownership. Hilda Strassman was not called as a witness, and there was not even the negative evidence of her testimony that she had not conveyed to the defendant, or to another, the title which had vested in her.

That a conviction of perjury cannot be supported upon such insufficient and incomplete evidence does not admit of discussion. The only argument advanced by the people is that, having showed title in Hilda Strassman more than a' year before the date of the alleged crime, the law presumes that she continued to own it until the defendant overcomes the presumption. But all such disputable presumptions give way before the presumption of innocence which belongs of right to every defendant, and which remains with him until the prosecution by convincing proof has established his guilt. As is said in People v. Douglass, 100 Cal. 1, there cannot be two presumptions in a criminal case. In the recent case of Hunter v. Hunter, 111 Cal. 261, this court considered at some length the question of conflicting presumptions, and quoted with approval from Matthews on Presumptive Evidence: " A charge of an act of immorality or of disobedience of a positive law will not be received unless supported by direct evidence. Circumstances showing probability merely are not enough; the fact averred must be conclusively proven.”

2. While the indictment charged the defendant with having committed perjury in justifying upon the bail bond of Kate Farley, held for trial for grand larceny, and while the recital in the bail bond itself was that Kate Farley had been committed for trial for the crime of grand larceny, the evidence, and all the evidence, showed that in fact Kate Farley had been arrested, examined, and held to answer for the crime of robbery. So far as the proofs disclose, she was not under arrest for grand larceny or for any other crime saving that of robbery. Kate Farley, then, being in custody for robbery, would not be entitled to her liberty upon the bail