People v. Robles

Garoutte, J. Defendant has been convicted of the crime of perjury, and appeals from the judgment and order denying his motion for a new trial. He has attacked the sufficiency of the indictment both by demurrer and motion in arrest of judgment, and to that attack we will address our attention.

As appears by the indictment, one Abbott was convicted of grand larceny. She. moved for a new trial upon the ground of newly discovered evidence. At the hearing of the motion her counsel used the affidavit of this defendant, which was sworn to by him before a party duly authorized to administer oaths. By this affidavit defendant declared that Abbott was not the party who committed the crime, and that he (defendant) was such party. It is further alleged that he made this false affidavit in the action and proceeding entitled The People of the State of California v. Aggie Abbott.

Before a party may be convicted of perjury in making a false affidavit, he must either use the affidavit for a purpose contemplated by section 118 of the Penaf Code, or deliver it to some one for such use. This principle of law is recognized and declared by section 124 of the chapter of the Penal Code bearing upon the crime of perjury, where it is declared: “ The making of a deposition or certificate is deemed to be complete, [683]within, the provisions of this chapter, from the time when it is delivered by the accused to any other person with the intent that it be uttered or published as true.” The word “ deposition” here used includes “ affidavit.” In effect this section declares that an affidavit will not support a charge of perjury until it has been delivered by the accused with intent to be uttered as true. The soundness of this doctrine is fully recognized by the trial court, for the jury were told as a matter of law, before retiring to deliberate upon a verdict, “unless the accused after making the affidavit, if he did make it, delivered it to the deputy clerk who administered the oath, or permitted the deputy clerk to take it away with the intent on the part of the accused that it be presented to the court and used in behalf of Aggie Abbott in support of her motion for a new trial, the defendant cannot be convicted. It is my duty to state to you that under the statute, even if he made that affidavit before the officer and then kept the paper in his possession, he cannot be convicted of the crime of perjury; and so before you convict him you must be satisfied, among other things, that he allowed the officer to take the affidavit away; delivered it to him, either formally or in the sense of allowing him to take it away for the purpose of being used in support of the motion for a new trial. He must have so delivered it to the clerk, put it out of his power and custody into the custody of the clerk, or of some one else, for the purpose of being used in support of that motion for a new trial.”