People v. Barry


Court: Supreme Court of California

Date published: Jan 23, 1883


   An information was filed against the defendant charging him with the crime of perjury, and a conviction being had an appeal has been taken to this court.

         The defendant filed a demurrer to the information, which was overruled by the court; and the first question presented for our consideration relates to the sufficiency of the information.

         By § 118 of the Penal Code, it is provided that ” Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states as true any material matter which he knows to be false, is guilty of perjury.”

Bishop in his work on Criminal Procedure, vol. 2, § 901, says: ” The elements of this offense to be alleged and proved are

         ” 1. A judicial proceeding or course of justice;

         ” 2. The defendant having been sworn to give evidence



  Conceding, therefore, for the argument that the defendant did, in his testimony, wilfully, falsely, and knowingly convey to the jury on such trial the impression and belief that it was not Kalloch but De Young who fired the first shot, yet he could not have been convicted of perjury therefore on that information, because that was not the false oath with which he was charged. The charge of the court was erroneous; it was calculated to mislead the jury, and on plain and well-established rules of law it becomes our duty to reverse the judgment.

         Judgment and order were reversed and cause remanded for a new trial.

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