Chadwick

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 65 Upon an indictment charging the appellant with the crime of perjury, in having willfully 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 first *Page 66 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 Odgen 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…

The petition of the defendant to transfer this cause from the district court of appeal of the first district to the supreme court, to be heard and determined therein, is denied. If the decision of the district court of appeal was intended to declare, as the defendant insists that it does, that when, upon the trial of a case, the wife of the defendant has testified against him without objection by him, her testimony then given may, in all cases, be read against him, over his objection, upon another trial of that or any other charge against him, we do not approve of that portion of it. No such question was necessarily involved in the case. The affirmance of the judgment, so far as the reading of such testimony is concerned, was justified by the fact that upon the trial of the forgery charge the defendant made no objection to the testimony of Norine Schneider against him, and that upon the trial of the perjury case, resulting in the judgment appealed from, he did not object to the reading of the testimony given by her upon the other trial. Furthermore, the testimony given upon the forgery trial by the wife of the defendant, not objected to by him, was admissible against him, upon the…