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VOLUME III-SECOND YEAR.

Crim. No. 28. First District. July 9, 1906. THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent, v. ERNEST MOORE CHADWICK, Appellant.

CRIMINAL LAW-PERJURY-INSTRUCTIONS.-In this prosecution for perjury it is held that there was no error in the instructions. ID.-ID.-MATERIALITY OF TESTIMONY-QUESTION OF LAW.Whether testimony given upon the trial of a cause is material to the issues then before the court is a question of law to be determined by the court; but, as is sometimes the case, especially upon a trial for perjury, the materiality of testimony will depend upon the existence of certain other facts, and if these facts are controverted, their existence must be determined by the jury.

‚ ID.—ID.—JURY TO FOLLOW INSTRUCTION.-A jury is at all times required in rendering its verdict to apply the facts shown in evidence in accordance with the rules of law given them by the court; but in so doing the verdict is none the less rendered by the jury.

ID.—ID.-EVIDENCE-CHARACTER OF PROOF.-In a prosecution for perjury the charge must be proven by the testimony of two witnesses, or one witness and corroborating circumstances.

ID.-ID.-ID.-DIRECT EVIDENCE-WHAT PROSECUTION MUST PROVE. -"Direct evidence" is declared in section 1831 of the Code of Civil Procedure to be "that which proves the fact in dispute directly without an inference or presumption and which in itself, if true, conclusively establishes that fact. Upon a trial for perjury, direct evidence is not limited to a denial in verbis ipsissimis of the testimony given by the defndant, but includes any positive testimony of a contrary state of facts from that sworn to by him at the former trial, or which is absolutely incompatible with his evidence, or physically inconsistent with the facts so testified to by him.

ID.-ID.-SUFFICIENCY OF INDICTMENT-QUESTION FOR COURT IN WHICH FILED.-Whether the information in the case in which the defendant is alleged to have committed the perjury was defective or not was a question to be determined by the court in which the trial was had.

ID.-ID. INSTRUCTIONS-MATERIALITY OF EVIDENCE.-In such a case, where the perjury is alleged to have been committed in a prosecution against the defendant for forgery of a certain telegram, the court properly refused to instruct the jury at defendant's request to the effect that, inasmuch as it was shown at the trial of the former action that the defendant did not in fact actually send the telegraphic message, but merely furnished the message to the operator to be sent by telegraph, it was not material to know when and where the telegrams herein considered were written.

ID.-ID.-SUFFICIENCY OF INDICTMENT-WAIVER OF OBJECTIONS.— In such a case the objection to the indictment that it charges two

offenses in alleging that a perjury was committed in swearing falsely that the telegrams were written in a certain place and that they were delivered to a certain party at the same place, is waived by failure to demur to the indictment on this ground.

ID.-ID.-EVIDENCE-STATEMENTS OF WIFE AGAINST HUSBAND ADMISSIBLE. The provisions of the code (Code of Civil Procedure, sec. 1881, subd. 1; Pen. Code, sec. 1322) prohibiting a husband or a wife from being examined as a witness for or against the other, except with the consent of both, does not preclude the people in a criminal proceeding against either of the spouses, from proving the statements or declarations of the other (if otherwise admissible) by the testimony of a witness who heard them. The code merely makes either spouse incompetent as a witness in an action or proceeding against the other, but does not render their statements eslewhere given privileged against being shown by competent testimony.

ID.-ID.-PREVIOUS CONVICTION-BURDEN ON PROSECUTION TO PROVE-INSUFFICIENCY OF EVIDENCE-VERDICT SEVERABLE.-The fact that the defendant in such a case has been previously convicted of a felony is a distinct element of the charge made against him in the indictment, and the defendant has the right to insist that the prosecution shall establish the existence of that element by competent evidence before he can be convicted therof. It is held in this case that the evidence does not sustain that portion of the charge, but that the verdict finding the defendant guilty of it is severable from the verdict on the main charge, and may be disregarded and judgment rendered on the latter portion of the verdict.

ID.—ID.—ADMISSIONS.-The extrajudicial statements or admissions of a defendant, in the absence of other evidence of the commission of the crime charged against him, are insufficient to establish his guilt; and they are equally insufficient to establish the existence of any substantive or essential element of a crime against the defendant. Such admissions are none the less extrajudicial because made by the defendant under oath in another case against him.

Appeal from the Superior Court of San Francisco County-Carroll Cook, Judge.

For Appellant-E. M. Chadwick in p. p.

For Respondent-Attorney General U. S. Webb.

Upon an indictment charging the appellant with the crime of perjury, in having wilfully and falsely testified at a trial of himself under the charge of forgery, that two certain telegrams, purporting to have been signed by Marie Schneider which were introduced in evidence at that trial, were written by him on or about the 1st day of March, 1901, in a cell or room of the police station in the city of Ogden, in the State of Utah, after he had been arrested at the said city of Ogden and while he was detained and imprisoned in said cell or room under said arrest, and that the said telegrams were at said time and place delivered by him to one Norine Schneider, he was tried and convicted before a jury in the superior court in and for the city and county of San Francisco, and has appealed from the judgment rendered thereon and from an order denying him a new trial.

1. The court gave the jury the following instruction, viz.: "You have heard the testimony in this case, and it is for you to determine Fourth. That the defendant swore to the

testimony alleged in the indictment to be false. That is a question of fact for you to determine, whether he gave the testimony which the indictment charges he did give, or whether he gave any portion of it. Fifth. That such testimony was false, that is, whatever testimony he gave in that action, if he gave it; and if you find there was such an action, and if he gave any of such testimony, that the testimony that he did give, or some portion of it, was false. Sixth. That the defendant, at the time he swore to such testimony, knew it to be false. That is a question of fact for you to determine, bearing in mind the rule of law that an unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false. Seventh. That the testimony so alleged to be false was material to the issue then before the court."

It is urged by the appellant that, as evidence of any false testimony for which the defendant could be convicted is limited to that laid in the indictment, it was error for the court to thus permit the jury to consider any testimony given by him at the previous trial other than that laid in the indictment, and to convict him if they should find that any portion thereof was false. We are of the opinion, however, that the above language of the court will not admit of this construction, and that from the whole instruction given them the jury could not have understood that they could convict the defendant for any false testimony other than that which is charged in the indictment. They were told that in order to convict the defendant they must determine whether he gave the testimony "which the indictment charges he did give"; and by being told in direct connection with this that they must find "that such testimony was false" they were expressly limited to the testimony laid in the indictment. The clause "whatever testimony he did give in that action", which is relied upon by the appellant, is by its connective "that is" placed in direct apposition with the clause "that such testimony was false," and is to be construed as an explanation thereof and with the same limitation. The further direction to determine whether "any of such testimony" which he gave in the prior action was false limited their consideration to "such" of the testimony laid in the indictment as they should find had been given by him, and is to be read as a continuation of and in connection with the prior portion of the instruction. The frequent limitation of their consideration to "such testimony" must have been understood by the jury as referring simply to whatever testimony of that charged in the indictment they should find was given by him.

2. In direct connection with the last sentence of the above quoted portion of the instruction the court told the jury that "whether the testimony alleged to be false was or was not material is a question of law which it is for the court to determine and not for the jury; the question of the materiality of evidence, no matter when and how it may arise, is always one of law for the court, and not of fact for the jury"; that in rendering a verdict in criminal cases the jury "only has the right to find the facts and apply to them the law as given by the court, and on a trial for perjury it is the duty of the court to instruct the jury as to

what facts would show the testimony to be material;" and said to the jury that if they found certain facts to be as alleged, the testimony, charged in the indictment herein to have been given by the defendant, was material to the issues in the former action. There was no error in thus instructing the jury. Whether testimony given upon the trial of a cause is material to the issues then before the court is a question of law to be determined by the court; but, as is sometimes the case, especially upon a trial for perjury, the materiality of testimony will depend upon the existence of certain other facts, and if these facts are controverted, their existence must be determined by the jury. The instruction to them that the existence of these facts would as a matter of law render the testimony material, and that they must so find, is in entire harmony with the instruction that, for the purpose of reaching a verdict, they must determine whether it is material. In being perImitted to determine the existence of these facts, the determination of the materiality of the testimony was left with the jury. A jury is at all times required in rendering their verdict to apply the facts shown in evidence in accordance with the rules of law given them by the court; but in so doing the verdict is none the less rendered by the jury. (See People v. Lem You, 97 Cal. 224; Ball v. Rawles, 93 Cal. 228; Pol. Code, sec. 1126.)

3. The court also instructed the jury as follows:

"Before the defendant can be convicted of the offense charged in the indictment his guilt must be shown by the positive and direct testimony of two witnesses, or by the positive and direct testimony of one witness and corroborating circumstances. In other words, the law prescribes a different rule of evidence in perjury cases than prevails in ordinary cases, both as to the kind and amount of testimony required to convict. The rule is different as to the kind of evidence, for positive testimony is absolutely necessary in a perjury case, and circumstantial evidence standing 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 the contrary, and is as I have stated. In perjury cases, in order that the evidence may be deemed sufficient, there must be positive testimony to a contrary state of facts to that sworn to by the defendant at the previous trial; that testimony must either be by two witnesses, or by one witness and corroborating circumstances."

Section 1968 of the Code of Civil Procedure declares: "Perjury and treason must be proved by testimony of more than one witness: treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances."

The above instruction, it will be seen, in addition to stating the provisions of section 1968 of the Code of Civil Procedure, told the jury that the guilt of the defendant must also be shown by the "positive and direct" testimony of two witnesses, or the "positive and direct" testimony of one witness and corroborating circumstances. As the instruction in this respect was favorable to the appellant, he does not claim that it was erroneous, but contends that there was no "direct" testimony of the guilt of the defendant;

that "there was no witness who was present at said cell and swore that the defendant did not there write said telegrams, and did not deliver them to Norine Schneider";-his counsel saying also in the brief filed in his behalf that "if it were sought to prove the defendant guilty of the crime charged in the indictment by direct testimony, the prosecution would have to produce at least one witness who was in the cell with the defendant all the time during his incarceration at Ogden, and such witness would have to testify that the defendant did not during such incarceration write said telegram, and did not then and there deliver the same to Norine Schneider. Such direct evidence was not produced, and the jury did not follow the instruction of the court in finding the defendant guilty."

It was clearly shown at the trial herein that at the trial of the former action the defendant did give the testimony charged in the indictment to have been then given by him; that at that time he testified that he was arrested at Ogden in the night time and on the same night was taken to the police station in that city and confined in a cell or room upstairs in the building; that at some time during the morning of the next day after his arrest, and while he was still confined in that room, he wrote the two telegrams in question, and in the afternoon of that day, while still confined in the room, delivered them to Norine Schneider. For the purpose of showing the falsity of this testimony the prosecution called as a witness James F. Pender, who testified that he was the officer who, in company with the chief of police, arrested the defendant at Ogden, and took him from the hotel where he was arrested to the police station; that Norine Schneider was with the defendant when he was arrested, and accompanied them from the hotel to the police station; that while they were on the way from the hotel to the police station, and before they reached it, Miss Schneider took one of the telegrams from her hat and handed it to the witness; that at the time the defendant was arrested he had a grip which the witness took along with them and searched after they reached the police station and before the defendant was taken upstairs to the cell or room in which he was confined; that upon so searching the grip they found and took from it the other telegram. Similar testimony was given by the chief of police.

The perjury with which the defendant is charged is, that upon the trial in the former action he falsely testified that the telegrams set forth in the indictment herein were written and delivered by him to Norine Schneider in his cell at Ogden and after his arrest in that city. That he gave such testimony fully appears as above shown, and in fact is not disputed. The fact in dispute at the trial herein, and upon which the falsity or truth of his testimony depended, was whether the telegrams had been written and delivered to her before his arrest, or whether he had written and delivered them in his cell after his arrest. If they were written before he was arrested his testimony that he wrote them after his arrest and while confined in his cell under such arrest was false. Any evidence, therefore, sufficient to establish as a fact that the telegrams had been written before his arrest would establish the physical impossibility of their having been written by him in

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