Pierce

I dissent. I would reverse the order for the reasons expressed by Mr. Justice Herndon in the opinion prepared by him for the Court of Appeal in People v. Pierce (Cal.App.) 52 Cal.Rptr. 853 .

Defendant, Clarence Pierce, was held to answer on an information charging him with two counts of perjury. His motion to set aside the information under section *55 995 of the Penal Code was granted by the superior court, and the People appeal from the ensuing dismissal. 1

The charges of perjury arose from two allegations made by Pierce in a petition for a writ of habeas corpus. The first count of the information was based on Pierce’s statement in the petition that a deputy sheriff who arrested him on November 11, 1964, struck him in the abdomen several times with a flashlight, and the second count, on his assertion that on November 17, 1964, while in the custody of the sheriff’s department, he was hit several times by a deputy sheriff and left lying on the floor. The information alleged that Pierce had caused the petition to be filed in the superior court, that these statements were wilfully and knowingly made under penalty of perjury, that Pierce knew they were false and that they were material to the issues tendered in the habeas corpus petition.

Pierce argues that his declaration under penalty of perjury in the habeas corpus petition was not voluntarily made and that the…