People v. Ennis

The defendant was convicted of per-The jury, and appeals from the judgment. No evidence is brought up, and the defendant relies for a reversal solely on the alleged insufficiency of the indictment.

It is true that the indictment is not well constructed, and-would not be held good in jurisdictions where there is not tolerated such want of precision and particularity of statement in pleadings as our Penal Code allows. Nevertheless, we think that under the provisions of sections 950, 959, 960, 966, and 1258 of the Penal Code the indictment in the case at bar is not insufficient to support the judgment. We will notice the main points made by appellant.

It is contended that in this indictment there is no averment that an oath had been administered to appellant before he gave the alleged false testimony. The averment on this subject is, that he gave the testimony, “having taken an oath then and there before the Honorable Albert C. Parker, a justice of the peace in and for Stockton Township, in San Joaquin County, California, duly elected, qualified and acting, and being entitled under the laws of the state of California to administer oaths in such cases, matters, and proceedings.” This character of averment is certainly not to be commended. A direct statement that an oath was administered to the witness by the justice would have been in much better form. But sections 118 and 966 of the Penal Code seem to assume

There is not any substantial merit in the position that there is no sufficient averment of the court in which the false testimony is alleged to have been given, and no sufficient averment that such testimony was given in a legal proceeding in which perjury could be committed. The averments on these points are that the false statements were made “in open'court, and during the pendency and as a part of the evidence in a criminal case then and there pending before the said Honorable Albert C. Parker, entitled ‘The People of the State of California v. Arthur Ennis, deféndant, ’ upon a criminal complaint charging the said Arthur Ennis with petit larceny.” These averments would have been, no doubt, more apt if it had been stated therein that the said case of People v. Ennis was pending in a “justice’s court” instead of “before . . . Parker,” who had been averred to be the justice of the peace; and that said ease was on trial as well as “pending.” But the language used in the averments was clearly sufficient to

The averment that the statements were “material to the issues tendered in said cause” was a sufficient averment of the materiality of the false testimony; it was not necessary to aver “how the false testimony was material.” (People v. De Carlo, 124 Cal. 462 .)

There was a sufficient averment that appellant testified falsely. The averment in the first part of the indictment that he did “willfully, unlawfully, feloniously, and contrary to said oath,” make certain statements, seems to be all that is required by section 118 as to the falsity of the statements; the language of said section simply being “willfully and contrary to such oath”; but in a subsequent part of the indictment, after an enumeration of the said statements, it is averred that “said statements so made, as aforesaid, by said defendant, were, then and there, and are false and untrue, and were, at the time of the making thereof, by the said defendant, Arthur Ennis, known by the said defendant to be false and untrue.” The language just quoted really makes it unnecessary to discuss the sufficiency of two other averments of the falsity of the statements, and appellant’s knowledge thereof, which are asserted to be insufficient because each is preceded by the word “whereas,” the contention being that what follows is mere recital. It is better, no doubt, to avoid the use of the word “whereas” in a pleading; but it may be observed that whatever is in itself a positive averment is not turned into recital by the mere fact that somewhere preceding the aver-, ment the word “whereas” is used; the effect of that word depends upon how it is connected with the succeeding part of <he sentence. “That whereas” is the form generally held objectionable in the older decisions. But the word may be used in the sense given to it .in the dictionaries as synonymous with “when in fact,” “while the contrary,” “the fact is,” etc.; and when used in that sense, as shown by the context, what follows may be positive averment, and not recital. In the case at bar the language objected to is, “whereas, in truth and in fact ... he, the said Ennis, was down to Sargent’s

By the indictment in the case at bar the appellant was fully informed of the charge against him, and none of the alleged defects of the indictment tended to his prejudice as tó any of his substantial rights; and the case is one to which the provision of section 1258 of the Penal Code peculiarly applies.

The judgment is affirmed.

Temple, J., and Beatty, C. J., concurred.