People v. Layman

We are of the opinion that appellant was properly found guilty of both perjury and subornation of perjury. Two depositions were taken in an action which had been brought, by appellant, against the Los Angeles Railway Co., for injuries alleged to have been inflicted upon him as he was pushing his stalled automobile away from the street-car tracks. In the first deposition, appellant himself testified as to the details of the accident. In the second, a Mrs. Miller testified, at appellant’s instigation, that she witnessed the accident. The evidence, in the case under review, warranted the jury’s conclusion that as a matter of fact Mrs. Miller had not seen the accident,

To prove the falsity of appellant’s word picture of his mishap with a street-car at the time and place he described, the prosecution placed upon the witness-stand all the motormen and all the conductors who were operating cars on the line where the accident was supposed to' have taken place. None of the street-cars in charge of the motormen had been in an accident, according to their testimony. This composite testimony of the motormen is, of course, the equivalent of that of but one witness to the fact that no accident had taken place (People v. Burcham, (1923 ) 62 Cal. App. 649 [ 217 Pac. 558 ]), and the law requires another witness or proof of corroborating circumstances. (Sec. 1103a, Pen. Code; sec. 1968, Code Civ. Proc.) This proof we do not find, as respondent suggests we may, in the failure of appellant to produce testimony. We do, however, find the statute satisfied by the testimony of the conductors, taken together; that they knew of no accident; and by proof of the fact that no accident was reported, whereas in the usual course of events, if there had been an accident, it would have been reported. Appellant complains that it was error, in violation of the hearsay rule, to permit the train dispatchers to testify that they had received no report of an accident. It was not hearsay, but direct proof, of course, of a fact, the fact being that no report had been turned in. This fact was material because of the presumption that the ordinary course of business had been followed (subd. 20, sec. 1963, Code Civ. Proc.) ; that is, that if there had been an accident it would have been reported to the dispatchers. “The corroborative evidence may be slight.” (People v. Follette, (1925) 74 Cal. App. 178 , 204 [ 240 Pac. 502 , 513].)

Appellant further complains of the refusal of the trial court to give two requested instructions. The first of these was to the effect that the jury should, in weighing the evidence, consider Mrs. Miller as an accomplice. This instruction was properly refused. As to the perjury charge, plainly she was not an accomplice, for, so far as appears, the false testimony appellant gave at the taking of his deposition was entirely his own idea, unaided in conception

We conclude, therefore, that Mrs. Miller was not an accomplice of the defendant, although she actively participated with him, and committed the crime of perjury, without which his crime of subornation of perjury would not have been complete. (People v. Ross, (1894) 103 Cal. 425 [ 37 Pac. 379 ].) The court did not err in refusing to instruct the jury to regard her as an accomplice.

By the other instruction requested, but not given, the jury would have been told that a witness false in one part of his testimony is to be distrusted in others; that the testimony of an accomplice ought to be viewed with distrust; and the evidence of oral admissions of a party should be received with caution. The first portion was covered in the instructions given; the balance of the requested instruction should never be given because it is an invasion of the exclusive province of the jury. (Hirshfeld v. Dana, (1924) 193 Cal. 142 , 156-160 [ 223 Pac. 451 ] ; People v. Northcott, (1930) 209 Cal. 639 , 653 [ 70 A. L. R. 806 , 289 Pac. 634 ].)

No further matter merits discussion. The judgment and order denying a new trial are affirmed.

Conrey, P. J., and Houser, J., concurred.