Robles

Defendant has been convicted of the crime of perjury, and appeals from the judgment and order denying his motion for a new trial. He has attacked the sufficiency of the indictment both by demurrer and motion in arrest of judgment, and to that attack we will address our attention.

As appears by the indictment, one Abbott was convicted of grand larceny. She. moved for a new trial upon the ground of newly discovered evidence. At the hearing of the motion her counsel used the affidavit of this defendant, which was sworn to by him before a party duly authorized to administer oaths. By this affidavit defendant declared that Abbott was not the party who committed the crime, and that he (defendant) was such party. It is further alleged that he made this false affidavit in the action and proceeding entitled The People of the State of California v. Aggie Abbott.

Before a party may be convicted of perjury in making a false affidavit, he must either use the affidavit for a purpose contemplated by section 118 of the Penaf Code, or deliver it to some one for such use. This principle of law is recognized and declared by section 124 of the chapter of the Penal Code bearing upon the crime of…