Full opinion text
CURTIS, J. An indictment against the appellant was returned by the grand jury of the county of Los Angeles charging him with the crime of perjury. Certain testimony was set out in said indictment which it was alleged therein was given by the appellant, while testifying as a witness before said grand jury, and it was charged in said indictment that said testimony was false and untrue, and that appellant at the time he gave the same knew it to be false and untrue. Only a small portion of the testimony of appellant, given at the time he was before the grand jury, was set forth in this indictment. The appellant was arraigned upon said indictment and pleaded not guilty to the charge therein contained, and the action was set for trial. Thereafter, and some two weeks before the day of trial, the same grand jury, without calling any additional witnesses, or without taking any further testimony whatever, and without any leave or order of court either permitting any amendment to said indictment, or directing the filing of a new indictment, or directing the case to be resubmitted to the same or another grand jury, returned a second indictment against appellant, again charging him with the crime of perjury. In this new indictment, not only was the testimony which was contained in the original indictment, and which was therein made the basis of the charge of perjury against the defendant, set forth, but other and further testimony, alleged therein to have been given by appellant while testifying as such witness before said grand jury, was set out in said new indictment, and the whole thereof was in said new indictment charged to be false and untrue, and to have been made by appellant with knowledge of its falsity and untruthfulness. A motion was made to set aside this new indictment upon all the statutory grounds. This motion was denied. The first point made by appellant for a reversal of the judgment herein is based upon the refusal of the court to grant his said motion to set aside said second indictment. The principal ground urged by appellant in support of said motion, and the only one which we will consider upon this appeal, was that said second indictment was not legally found by the grand jury for the reasons: First, that said grand jury was without jurisdiction or power to consider the matter without an order of resubmission, and secondly, that said grand jury was without authority to find said new indictment without hearing further and additional testimony to that presented to them at the original hearing. As to the power of the grand jury to return a second indictment against a defendant for the same offense charged in the first, the rule is stated in Corpus Juris as follows: “It is generally held that a grand jury may find a valid indictment notwithstanding another indictment is pending against accused for the same offense, and the pendency of the other indictment, where there has been no conviction or jeopardy thereon, is not ground for a plea either in abatement or in bar of the second indictment, . . . although as a rule accused can be tried or put in jeopardy only on one. It has been so held, even though defendant has been arraigned and a plea of not guilty entered on the first indictment. ’ ’ (31 C. J., p. 598.) Numerous authorities are cited by the author of the above work in support of this rule, and they appear generally to sustain the text. Appellant has called our attention to a number of cases decided by the supreme and appellate courts of this state which hold in effect that neither can the district attorney file nor the grand jury present an amended or second indictment where a demurrer has been sustained to the original indictment without obtaining an order of court either permitting the indictment to be amended or submitting the case to the same or another grand jury. This is in accord with section 1008 of the Penal Code and is undoubtedly the rule enunciated in the following cases: Ex parte Williams, 116 Cal. 512 [48 Pac. 499]; Copeland v. Superior Court, 62 Cal. App. 316 [217 Pac. 573]; Ex parle Ha-yter, 16 Cal. App. 211 [116 Pac. 370]. These eases are not decisive of the point now under consideration, for the reason that no demurrer was sustained to the original indictment returned herein against the defendant, but the district attorney, for reasons best known to himself, had the grand jury return a second indictment while the original indictment was in full force and after the defendant had entered his plea thereto. The case of Thompson v. United States, 202 Fed. 401 [47 L. R. A. (N. S.) 206, 120 C. C. A. 575], is a case very similar to the present action. This case arose in this state, but was brought in the federal courts and the decision rendered by the circuit court of appeals -was made in reference to the practice established by our Penal Code in criminal actions. In that action a second indictment had been returned against the defendant in which he was accused of the identical crime embraced in the first indictment after he had entered his plea and the ease had been set for trial. It does not appear that the court made any order permitting the district attorney to amend the indictment or directing the case to be resubmitted to the grand jury. The court said, page 403, “The contention is that under the law of California, which it is said became the rule of practice for the federal courts in that state, a grand jury Avhich has once indicted a defendant is disqualified to bring in a second indictment against him charging him with the same offense. . . . Counsel for plaintiff in error cite three decisions—■ People v. Hanstead, 135 Cal. 149 [67 Pac. 763]; People v. Bright, 157 Cal. 663 [109 Pac. 33]; People v. Landis, 139 Cal. 426 [73 Pac. 153]. ... It is to be observed that all of the decisions of the Supreme Court of California above cited were rendered prior to the change in section 1008 of the Penal Code, which was made in 1905. . . . The section as amended substitutes for the last clause the following: ‘Directs the case to be submitted to the same or another grand jury’—thereby declaring the law of the state to be that a grand jury which had once found an indictment against a defendant was not disqualified to find a second indictment against him upon the same facts, a wise provision of law, and we may Avell wonder why it should ever have been held otherwise, as no substantial reason is apparent why a grand jury after having once found an indictment which is discovered to be defective in form may not, upon the information which it has acquired, and with the same conviction, based upon that information, that the defendant should be brought to trial, present a second indictment for the same offense.” It may be true, as suggested by appellant, that the point made in that action in support of the motion- to quash the indictment was that “A grand jury which has once indicted a defendant is disqualified to bring .a second indictment against him, charging him with the same offense,” but the court, in deciding said motion adversely to the accused, must necessarily have held that the grand jury had a right to return the second indictment without any order of court directing a resubmission of the case, for the reason we think the record plainly shows that no such order was made by the trial court. In Kalloch v. Superior Court, 56 Cal. 229, the defendant was prosecuted by information. After an order made setting aside the first information, a second information for the same offense was filed by the district attorney, without any order by the court directing the filing of the same. Prior to the making of said order of • dismissal, however, a second complaint had been filed against the defendant, charging him with the same crime set out in the first information. The defendant moved to set aside the second information and his motion was denied. The defendant then instituted a proceeding to prohibit the superior court from proceeding with the trial of the defendant on the ground that all proceedings under the second information were absolutely void and the court was without jurisdiction of the defendant. In denying this petition, the supreme court, on page 236, disposes of this question as follows: “But was it a material fact in the case, that the second prosecution was commenced before the first one was ended? Suppose the prosecution had been by indictment, would the pendency of the indictment affect the right of the prosecution to present another for the same offense? This question is answered in the negative by a multitude of authorities, a few of which we will notice. In the case of Dutton v. State, 5 Ind. 534, it was held, that ‘another indictment pending for the same offense constitutes no ground of abatement. This, in criminal prosecutions, seems to be the settled rule.’ (1 Chitty’s Crim. L. 447.) In the case of Commonwealth v. Murphy, 11 Cush. (Mass.) 472, the court says that ‘the pendency of one indictment is no ground for plea in abatement to another indictment in the same court for the same cause. ’ In the case of Miazza, v. State, 36 Miss. 616, the court decided, that ‘the motion in arrest of judgment, on the ground that other indictments of similar import were then pending in the same court against the same defendant, was properly overruled. ’ In United States v. Herbert, 5 Cranch C. C. 87, Chief Justice Cranch said, that ‘the pendency of another indictment against the defendant for the same offense is no ground for arresting the judgment. ’ The last authority to which we will refer on this subject is Wharton’s Criminal Pleading and Practice, section 452, where the author says: ‘It has been ruled that, though the defendant has pleaded to a former indictment for the same offense, the fact of the former indictment being still pending is no bar to a trial on the second. ’ It is true, that all the foregoing cases refer to indictments, but the rule is equally applicable to an information, as the latte.r is simply designed to serve the purpose and take the place of the former. Each is but an accusation, in legal form, of the offense with which the prisoner stands charged, and for which he is to be placed upon trial. We can, therefore, see nothing in the provisions of the Penal Code, or in the general principles of law, applicable to proceedings in criminal eases, which in any . manner affect the regularity and validity of the second information, on the ground above stated.” 1 In People v. Ammerman, 118 Cal. 23 [50 Pac. 15], the court had under consideration section 1008 of the Penal Code. In that case the information had been filed charging the defendant with the crime of robbery. The defendant pleaded not guilty to the charge and his case was set for trial. After the jury had been sworn to try the case, the district attorney discovered that the information was fatally defective in that it failed to allege the ownership of the property stolen. Thereupon, and upon his motion, the court dismissed the information and discharged the defendant, without making any order that a new information be filed. The district attorney, nevertheless, thereafter filed a new information charging the defendant with the same crime which had been attempted to be charged in the original information. It was claimed by the appellant therein that under section 1008 of the Penal Code the prosecution was barred because of the failure of the court to direct the filing of a new information. The supreme court, however, held that section 1008 was applicable only when a demurrer had been filed to the information and had been allowed by the court. The court on page 28 disposed of appellant’s contention as follows: “The question in my opinion does not necessarily arise, for the reason that no demurrer to the information appears to have been filed. It is by the terms of the statute in the case of demurrer allowed that the judg'ment becomes a bar unless the court directs a new information to be filed. The section does not apply to a case where no demurrer is interposed, or, if interposed, is disallowed. This clearly appears from preceding and subsequent sections of the same chapter.” We can conceive of no reason why any different rule should prevail in the case where the accused is being prosecuted by an indictment instead of by an information. There are a few cases in other jurisdictions holding a contrary doctrine, but these cases we think are exceptions to the general rule which permits the return of a second indictment without any order of court directing the case to be resubmitted. Important changes have been made in recent years in the criminal procedure of our state, the evident purpose of which was to remove the restrictions which were formerly placed upon prosecuting officers in instituting and conducting criminal proceedings. In 1905 [Stats. 1905, p. 773], section 1008 was amended so as to permit a resubmission of the case to the same grand jury in the event of a demurrer thereto being sustained, and, in 1911 [Stats. 1911, p. 436], this section was further amended so as to permit an indictment or information to .be amended by the district attorney without leave, before the defendant pleads, and by leave of court thereafter. The strict rules prevailing prior to these amendments often hampered prosecuting officers in their attempts to enforce the law and resulted in many miscarriages of justice. In view of the more liberal rules now prevailing in the institution and conduct of criminal proceedings, and after a consideration of the above authorities, we are of the opinion that there is nothing in the law of this state which affects the regularity or validity of the second indictment presented against the defendant. Neither do we think the court erred in denying appellant’s motion to set aside the said indictment on the ground that the grand jury failed to take further evidence before returning the same. The general rule appears to be that when the second indictment is returned by the same grand jury which found the original one, the grand jury may rely upon the evidence given on the hearing, which resulted in the return of the original indictment, and need not hear any additional testimony. (31 Cor. Jur., p. 600; People v. Baff, 99 Misc. Rep. 684 [166 N. Y. Supp. 136]; Whiting v. State, 48 Ohio, 220 [27 N. E. 96].) There are a few cases holding a contrary doctrine. Among these latter cases is that of State v. Ivey, 100 N. C. 539 [5 S. E. 407], and cited and relied upon by appellant. Regarding this case the court in People v. Baff, supra, says: “To sustain the point made in the first motion, counsel rely on the case of State v. Ivey, 100 N. C. 539 [5 S. E. 407], which supports their contention. I am, however, not inclined to follow that decision, for the reason that it is too technical. It seems to me that it would be an idle ceremony for the same grand jury to rehear the same witnesses, where it is of opinion that sufficient evidence was taken in the first proceeding to meet the objections which resulted in a demurrer being allowed to a defective indictment.” To the same general effect is the case of Whiting v. State, supra. Appellant interposed a general and special demurrer to the second indictment which was overruled by the court. Appellant assigns this action of the court as reversible error. The principal contention of appellant in support of his demurrer is that more than one offense was charged in the indictment. The indictment in question consisted of one count, and covered nearly fifty typewritten pages of the clerk’s transcript. It contained a large portion, although by no means all, of the testimony given by the appellant while testifying as a witness before the grand jury in an investigation then being made by said grand jury of an attempt to bribe a deputy sheriff of said county. The testimony charged to be perjurious was all given in one proceeding before the grand jury. Appellant contends that, under the practice followed by the district attorney in this action, it is impossible for the appellant, or for that matter for the court, to know of what particular false statement defendant was found guilty; that while all the jurors may have believed that he falsified in some material portion of his testimony, they might wholly disagree as to the particular portion thereof which was false and untrue. Appellant further claims that each violation of his oath, if material, constituted a separate and distinct offense, and, under section 954 of the Penal Code, should be pleaded in separate counts. No authorities have been called to our attention which support this contention of appellant. On the other hand, there appears to be quite an agreement among text-writers and in the adjudicated cases that it is proper to include in an indictment all the material testimony which it is claimed is false. “An indictment or information charging perjury may join, in one count, all the particulars in which the accused is alleged to have testified falsely, although the assignments are in relation to separate and distinct false statements, where all the statements assigned as false were made under oath and in one proceeding.” (Wharton’s Criminal Procedure, vol. II, 3d ed., sec. 1069.) “An indictment for perjury may embrace in a single count all the particulars in which the defendant is alleged to have sworn falsely.” (30 Cye. of Law and Procedure, p. 1439; Cover v. Commonwealth (Pa.), 8 Atl. 196; Commonwealth v. Johns, 72 Mass. 274; State v. Bishop (1 D. Chipm. 120), 2 Vt. 118; State v. Bordeaux, 93 N. C. 560; State v. Taylor, 202 Mo. 1 [100 S. W. 41]; State v. Joiner, 128 La. 876 [55 South. 560].) The court in State v. Taylor, supra, said: “Some of the assignments of perjury were more clearly established than others, but there was ample testimony to establish the guilt of the defendant on a number of assignments, and on matters which were material to the issue on the trial of Kelleher, and where this is the case, it is proper to join the various assignments of perjury in one count where they relate to the same transaction, and, if the evidence sustains one or more of the assignments, it is not necessary that the state should prove all of the charges.” It is next the contention of appellant that the evidence is not sufficient to sustain the verdict. A consideration of this claim on the part of appellant will necessitate a statement of some of the facts as shown by the testimony. The verdict being against the defendant, it will be only necessary for us, in stating the facts, to mention those which tend to sustain the verdict. The appellant at the time of his indictment was, and for some two years prior thereto had been, one of the six justices of the peace of the township of Los Angeles. On March 5, 1923, T. J. Gilbert and Sam Johnson, after a preliminary examination, were held to answer for the crime of grand larceny; their bail was fixed at $10,000 each, and, being unable to give the same, they were committed to the sheriff of the county of Los Angeles by Justice of the Peace W. S. Baird, before whom said preliminary examination had been held. While in jail these prisoners made the acquaintance of one Carl V. Lindquist, who was a fellow-prisoner with them in the county jail of said county. Lindquist had become acquainted with appellant some time during the preceding December. On April 17, 1923, Lindquist was released from jail. On the same day he visited appellant at his office and, according to his testimony, he arranged with appellant for the release of Gilbert and Johnson from said county jail, for the sum of $1,400, which amount was paid to appellant by Lindquist and Mrs. Gilbert, wife of T. J. Gilbert. On the evening of the day Lindquist was released he appeared at the county jail with tw^o orders, signed by appellant, directing the release of Gilbert and Johnon. On May 1st Gilbert’s case was called in the superior court, and upon his failure to appear his bond was forfeited. It was found on investigation that there was no bond on file for either Gilbert or Johnson. Later appellant produced two bonds which he had either at his residence or private law office, and which purported to have been given for the release of Gilbert and Johnson. These bonds bore the names of A. E; Stensbad and T. E. Little, but it later developed that the names of these purported sureties had been forged to the said bonds. Thereupon Lindquist was arrested and charged with the crime of forgery in signing the names of Stensbad and Little to said bonds. While under arrest he attempted to arrange with Deputy Sheriff Riemer, who was investigating said charge of forgery, to “fix” the case for the sum of $700, which he agreed to pay Riemer. Riemer pretended to fall in with the plan and some days thereafter, the exact date being May 17, 1923, Mrs. Lindquist, wife of Carl V. Lindquist, delivered said sum of $700 to the said Reimer. This money was traced back through Mrs. Lindquist to an attorney named Edgar B. Hervey, who obtained it at a drugstore at the corner of Fifth and Broadvray in the city of Los Angeles. Just before be had delivered it to Mrs. Lindquist, Hervey had been told by appellant to call at the drugstore and ask for a package which had been left there to be delivered to George Allen or Ruth Allen. Upon doing so he was handed a package which proved to be a loaf of bread wrapped in a towel, and in one end of the loaf of bread were seven one-hundred-dollar bills. These bills Hervey took from the package and delivered to Mrs. Lindquist. Before a session of the grand jury held during the latter part of May, 1923, for the purpose of investigating a charge of attempted bribery by Lindquist of said deputy sheriff, the appellant testified, among other things, that on the day the package was delivered to Hervey at the drugstore and some hours earlier in the day, probably about 11 o’clock of said day, Hervey came to .appellant while the latter was holding court and said that he had a chance to get Mr. Lindquist out on bail if they could raise $700. The transcript of the testimony taken on said hearing then continues as follows: “I (appellant) asked him how he was to raise the $700.00. He told me Lindquist had said if he would come to me I knew where he could get the money. Now, Mr. Lindquist had told me, when he first got in this trouble, that if there was an opportunity for him to get put on bail, that he had a friend, whose name I don’t know just now, but I can get it—I have a note that I made. As I recall, it was Mr. Rollins, who lives in an apartment house down here—he gave me the number; I don’t know which apartment house it was. At the time he gave me the telephone number, and I called up the number, and it was the Pendleton or the Pelton apartments, and I talked with this man—asked him if he knew Mr. Lindquist; that Mr. Lindquist wished to get $700.00, if he could, for the purpose of getting his bail produced; and that if he would communicate with Mr. Hervey about the matter, that Mr. Hervey was his attorney and would arrange it. I gave him Mr. Hervey’s address and told him what his phone number was; I am quite sure that that conversation occurred— well, I know it occurred in the morning, because it was after I went to lunch that I got a call back. He wanted to know who I was—very suspicious, apparently. Well, I told him who I was—I had no reason to hide it. I told him I was Charming Follette; that I had known Mr. Lindquist,; that this Mr. Lindquist was in trouble, and I didn’t believe he was involved in any dishonesty connected with the transaction. He said, ‘All right; I will see what I can do, and I will communicate with Mr. Hervey.’ I said, ‘Sec Hervey about it and come right down here to the court house’—I didn’t make any bones about it, and had no reason to. I then heard from this man—it must have been about 12:30 or a quarter to one or one o’clock. It was either the day or the day before that Mr. Hervey was involved in some trouble. I didn’t know anything about Mr. Hervey getting in trouble until after he was involved—I think the next day or two days after. I received a call that an effort had been made to reach Mr. Hervey, and that Mr. Hervey was not available, and the money, for the reason he didn’t want to be known in the matter, and he felt his safety and protection required it—this same man that I talked to— . . . Q. That is where you got the $700,001 A. I didn’t get the $700.00; Mr. Rollins was Mr. Lindquist’s friend, and he agreed to produce the money, Mr. Rollins said he would check this money for Mr. Hervey— he didn’t say ‘Mr. Hervey,’ but he said he would check the money at the drug store, and if Mr. Hervey "would call for the money at the drug store—no, if Mr. Hervey would call and get the check in a telephone booth at the Angelus Hotel, that he could then go and get the money, and Mr. Rollins would not be known—didn’t want to be known in the transaction—he w'ould consider himself better off. It looked pretty funny to me, that here is a man going to produce $700.00, and going in this foolish surreptitious manner to get the money to Mr. Lindquist or Mr. Hervey. He said, ‘I don’t want to be known; I don’t want to be mixed up with Lindquist’s affair. I am ready to produce the money, but I don’t care to be mixed up in it.’ Q. That is, Mr. Rollins 1 A. Yes. I said, ‘Well, all right.’ And I called up Mr. Hervey on the telephone—I didn’t get him right away but apparently when he came in from lunch he called me, or I called him—I don’t remember which may have answered or called. I told him about this, where he could get the money. I asked him if he knew anything about Rollins—if Lindquist had talked to him about Rollins, or anything about it; and I told him just what he told me. He said, ‘Well, that is all right’—he would get the money, . . . and Mr. Hervey was to go there at a certain time; that is, the money would not be available until a certain time that day—I forget just when it was, but I think around one or 1:30—and I went about my business, forgetting about it until I got another telephone call, saying that the money was left in a check room at a drug store— from this same fellow Rollins—whom I had no doubt is available. I have his phone number and all that. Mr. Rollins told me that they didn’t give him a check; that one had to call for the money in person. He didn’t know who was going to call for it, so he left it for a Mr. or Miss Allen; and that if Mr. Hervey-—he didn’t say‘Mr. Hervey’— he said if he would go and get the money there, to simply call for a package for that party, and it would be available. I couldn’t get Mr. Hervey then—as he had gone out; and I went down to the hotel where I thought Mr. Hervey vrould be to get the check to get the money, and delivered the message I had received. Q. You had told him previously, had you, that you had told Mr. Hervey to go down there to get it? A. I delivered the message I received, that if he would go down there he would get it. Q. What was it to be in? A. He said it would be in a package. I then, told Mr. Hervey he would have to call for it in person, without a cheek; that he would simply have to go and ask for this package. Q. This was a package of bills, was it, or currency? A. I presume so. He didn’t say what form it would be in, but it would be in a package, he said—I don’t know. Q. You don’t know whether it was silver or currency? A. I really don’t know; but I don’t imagine they would have that imich silver—that would be a pretty heavy package. It may have been, though—I don’t know; but it was the money, no doubt; and I don’t imagine he would leave a check. Q. What size was the package? A. I don’t know what size the package was. A package of bills would be, I imagine about that size (indicating); but I don’t know; I never saw the package. I didn’t go down there and get it, and I didn’t talk with him further about it. It may have been silver—I don’t know. Q. Let’s cheek back a minute; Hervey had gone down here to the hotel and you had phoned to him at his office and found he had left and then you went to Hervey? A. I tried to get the message 'to Mr. Hervey over the telephone, that no check—that there wouldn’t be anybody there for a check at all; that he would have to go and call for the package in person; and he apparently went and did so. Now, it is just dime novel foolishness, that, as I reflect-on it, has got my goat. Q. Let’s see: Hervey, you found him at this hotel—which hotel was it? A. Mr. Hervey was waiting at the hotel. Q. Which hotel was it? A. The Angelus Hotel. Q. This was about what time of the day ? A. Well, it must have been about 1:30. Q. What did you say to Hervey then? A. I said I had gotten a phone message that there would not be any check for him; that he would have to go in person and get a package, and ask for a package for Mr. Allen. I had told him that—I remember that very definitely; and whether or not he got it, I don’t know. I asked Mr. Hervey if he wouldn’t let me know if he got it all right, and let me know what the darned thing was all about, or something of that sort. The mystery of this business of chasing around hotels and things with packages, didn’t appeal to me very much; but I couldn’t see anything wrong in it. Q. You didn’t see the package? A. No. Q. Where did Rollins tell you he had placed the money? A. He told me it was in a drug store—an Owl drug store on Broadway. Q. Whereabout in the drug store? A. In a check room, in a drug store on Broadway. Q. In a check room? A. Yes; he said it was checked—I don’t know as he said a check room, but he said it was checked up in an Owl drug store on Broadway. ... Q. Isn’t it true that you described to Hervey the character of the package? A. No, I didn’t. I didn’t know the character of the package; I haven’t seen the package to this day, and I couldn’t tell you whether it was currency or cash, or what it was. ... Q. And you positively say that you didn’t leave that package there? A. Absolutely yes—I did not. Mr. Stafford: And you never saw the ticket, or anything at all ? A. No, sir. Q. I ask you to examine this ticket, and examine the handwriting, ‘.George Allen or Ruth Allen’—is that your handwriting (showing check to witness) ? A. No sir. Q. You never saw this ticket before? A. Never saw it in my life. . . . A. I just called Mr. Rollins once, but he called me twice. Q. And he stopped at this apartment house, the one of two names ? A. They told me over the phone it went in through an exchange, and they gave me the name of the apartment house. Q. And they knew who he was, did they—no trouble about finding him, or who he was— A. I had no trouble at all; they just connected me right away. Q. And the house was one of two, you thought? A. The Pendleton or Pelton Apartments.” This testimony, together with numerous repetitions and reiterations of the same, was set out in the indictment. In substance the testimony of appellant before the grand jury might be briefly summarized as follows: That Lindquist, after he had gotten into this trouble regarding the forged bail bonds of Gilbert and Johnson, had told appellant that if there was an opportunity for him to get bail, that he, Lindquist, had a friend whose name was Rollins who would assist him in raising the money neeessar)'to pay for a bail bond; that Rollins lived either at the Pendleton or the Pelton Apartments, and that' Lindquist then gave to appellant Rollins’ telephone number at these apartments, which appellant then wrote down on one of his cards; that thereafter Hervey came to appellant and told him that Lindquist had a chance to get out on bail if he could raise $700; thereupon appellant rang up Rollins at the Pendleton or Pelton Apartments and told him that Lindquist wished to get $700 with which to get bail, and that if Rollins would communicate with Mr. Hervey, Lindquist’s attorney, the latter would arrange it, and that appellant then gave to Rollins Hervey’s address; that Rollins said “All right, I’ll see what I can do and I will communicate with Mr. Hervey”; that this conversation occurred sometime before noon, and about 12:30 or a quarter to 1 o’clock, Rollins rang up appellant and told him that he, Rollins, did not want to be known in the matter, but that he would check the money at the drugstore, and that a check for the same could be found in a telephone booth at the Angelus Hotel; that thereupon appellant called up Hervey by telephone, or Hervey called up appellant, the latter "was not certain, but in this telephone conversation appellant told Hervey where and how he could get the money, but that it would not be available until around one or one-thirty o’clock; that later Rollins again called up appellant and told him that the money would be left at the drugstore at the corner of Fifth and Broadway, but that there "would not be any cheek for it, but that it would be delivered when asked for in the name of Mr. or Miss Allen; that appellant, on receiving this second message, endeavored to telephone Hervey but not being able to reach him by phone, he went to the Angelus Hotel, where he found Hervey and communicated to him the contents of Rollins’ second message; that appellant did not place the money in the drugstore# and that he did not write “George Allen or Ruth Allen” on the card or check which was left with the package containing the money, and that he never saw this card or check before it was shown him at the time he testified before the grand jury, and that he had never seen the money which' 'was delivered to Hervey at the drugstore. At the trial it was shown that there was no apartment house in the city of Los Angeles by the name of Pendleton,¡ but there was one by the name of Pelton Apartments, and; that Gilbert, Johnson and Lindquist resided there during a, part of the months of April and May, 1923, when they were' not public charges at the county jail. Lindquist testified that he did not know of an)-- person by the name of Rollins; that he never had any conversation with appellant in which1 the name of Rollins was mentioned; that he never gave appellant any telephone number at which any person by the name of Rollins could be reached, and that he did not know at any time during the months of April and May, 1923, the telephone number of the Pelton Apartments so that he could repeat it without referring to a telephone book, and that, the defendant did not in his presence write the name of Rollins with the telephone number on a card; that he knew Gilbert and Johnson and that he knew Gilbert went at times by the name of Gates, but never knew him by any other name; and that he never knew him by the name of Rollins. . The Pelton Apartments were owned and conducted by two brothers, C. R. Brown and R. B. Brown, during the months of April and May, 1923, and for a long time prior and subsequent thereto. These men testified that no person by the name of Rollins was stopping at said apartment house during the months of April and May, 1923, or at any other time; that they knew Gilbert by the name of Gates, but never knew him by the name of Rollins; that Gates, or Gilbert, registered at the Pelton Apartments on April 18th and left on the night of May 2, 1923, and that they had never seen him at the apartment house since that date. Olive McPherson and Lucille B. Fennell, two telephone operators who had charge of the switchboard at the Pelton Apartments, testified that they knew of no such person as Eollins being at the Pelton Apartments during the months of April or May, 1923. Neither of these witnesses had any recollection of any call being received at the Pelton Apartments for a man by the name of Eollins during the month of May, 1923. Miss Fennell testified that she knew and remembered Gilbert under the name of Gates, but did not know him by any other name. Mr. John S. Cooper, the attorney of Gilbert, testified that Gilbert resided at the Pelton Apartments prior to and on and about May 1, 1923, but that he had not seen him, nor heard from him since said last-named date. In addition to these witnesses, B. F. Anderson, an investigator of the district attorney’s office, testified that he visited the Pelton Apartments the last part of April or the first part of May, 1923, in search of Gilbert, 'and that he was not able to find him there, although he went to the room formerly occupied by Gilbert and his wife and searched for him in other parts of the house. The witness Hervey testified, as did also the appellant, that appellant met Hervey at the Angelus Hotel and told him that he could get the money by calling at the drugstore at Fifth and Broadway and asking for a package left there for “George Allen or Euth Allen.” Hervey went direct from appellant to the drugstore, only one city block distant, and secured the money by asking for a package according to the instructions given him by appellant. The two attendants at the drugstore testified that this package had been left there less than an hour before it was delivered to Hervey by a person described as a man of medium build, and that at the time he left the package he wrote in their presence on a card or check 1 ‘ George Allen or Euth Allen.” One of these attendants testified that the person leaving the package at the drugstore was a man just about the size of appellant. This card or cheek was produced at the trial and a witness, by the name of Milton Carlson, who qualified as an expert on handwriting, testified that the handwriting upon the card or check was the handwriting of appellant. The indictment, as we have already observed, contains a large number of assignments of perjury. It may be that the evidence is not sufficient to sustain all of such assignments, but the rule is well settled that while the indictment may embrace two, or more, or many assignments of perjury, if the evidence sustains one or more of the assignments it is not necessary for the prosecution to prove all of the charges. (State v. Taylor, supra.) » It will not 'be necessary, therefore, to examine the evidence with a view of ascertaining whether it is sufficient to sustain all of the assignments of perjury set forth in the indictment. Some of these assignments may possibly be upon immaterial matters. Others were upon collateral issues to the real subject under investigation by the grand jury at the time appellant testified before that body. It will be remembered that the grand jury had under investigation the attempted bribery of Deputy Sheriff Riemer. The money which was to be used to bribe this officer was the $700 which Hervey procured at the drugstore at the corner, of Fifth and Broadway. In determining, therefore, who were the guilty parties in this crime, if any had been committed, it became of vital importance to determine the identity of the person leaving at the drugstore the package containing the $700. Hervey testified that he went to the drugstore and procured the money under the direction of appellant. It therefore became material for the grand jury to know whether or not the appellant himself had left the money at the drugstore for Hervey. As for the appellant, this was the crux of his whole testimony before the grand jury. It was charged in the information that appellant’s testimony, denying that he had been at the drugstore and there left the package containing the money, was false and untrue, and as this is the most serious and vital assignment of perjury against the appellant contained in the whole indictment, we will examine the evidence offered by the prosecution with a view of ascertaining whether the same supports this assignment. If the evidence supports this assignment, then it will be unnecessary to consider the testimony in the light of the remaining assignments. On the other hand, if the evidence fails to support this assignment, then, as we view the case, a verdict of conviction upon any other assignment would be based upon mere collateral, if not immaterial, matters. In proof of the falsity of the testimony of appellant that he did not leave the money at the drugstore for Hcrvey, the two attendants at the drugstore with whom the money was left testified at the trial that-the person who left the package containing the money was a man of “medium build,” and that he wrote “George Allen or Ruth Allen” on the check left with the package. The witness Carlson testified that the writing on the card was that of appellant. This testimony in any ordinary action, if believed by the jury, would be sufficient to prove that appellant was the person who left the money at the drugstore. But in prosecutions for perjury, the falsity of the statement claimed to be perjurious must be proven by two witnesses or the testimony of one witness and corroborating circumstances. (Pen. Code, sec. 1103a.) Was the testimony, therefore, of the drugstore attendants and that of Carlson, the handwriting expert, if legally corroborated, sufficient to support the verdict finding the defendant guilty of perjury? Under the decisions of the appellate courts of this state, positive evidence is absolutely necessary to support a charge of perjury, and circumstantial evidence alone is never sufficient. I (People v. Wells, 103 Cal. 631 [37 Pac. 529]; People v. Bureham, 69 Cal. App. 614 [232 Pac. 149].) Yet this does not mean that there must be the positive and direct evidence of a witness who has testified to the falsity of the testimony given by the accused. It docs not mean, in order to sustain the verdict in this case, based upon the assignment under consideration, that at least one witness must testify that he actually saw and identified the appellant as the person who did leave the money at the drugstore, but such conviction must stand if there is any testimony showing a contrary state of facts from that sworn to ¡by appellant before the grand jury and incompatible with his evidence there given, provided the same is legally corroborated. In People v. Porter, 104 Cal. 415 [38 Pac. 88], the supreme court, in considering the sufficiency of the evidence 'in that action to support a verdict of conviction for perjury, states the rule"as follows: “It is contemplated by the statute that there must be testimony of one witness to facts that are ^absolutely incompatible with the innocence of the accused before a conviction is justified by the law.” In People v. Chadwick, 4 Cal. App. 63 [87 Pac. 384], the court says: “ ‘Direct evidence’ is declared in section 1831, Code of Civil Procedure, to be ‘that which proves the fact in dispute directly without an inference or presumption and which in itself, if true, conclusively establishes that fact.’ Upon a trial for perjury, direct evidence . . . includes any positive testimony of a contrary state of facts from that sworn to by defendant at former trial, or which is absolutely incompatible with his evidence, or physically inconsistent with the facts so testified to by him.” And in People v. Casanova, 54 Cal. App. 439 [202 Pac. 45], the same rule is expressed by the court and in the following language: “That there was such legal evidence, sufficient to meet the requirements of the statute, we have no doubt. The statute respecting the quantum of evidence necessary in perjury cases will be satisfied if there be the testimony of one witness to facts that are absolutely incompatible with the innocence of the accused, corroborated by circumstances which, of themselves and independently of such directly inculpatory evidence, tend, with a reasonable degree of certitude, to show that the accused is guilty as charged. ‘Upon a trial for perjury direct evidence is not limited to a denial in ipsissimis verbis of the testimony given by the defendant, but includes any positive testimony of a contrary state of facts from that sworn to by him at the former trial, or which is absolutely incompatible with his evidence, or physically inconsistent with the facts so testified to by him.’ ” Viewed in the light of these decisions, the testimony in this case of the two drugstore attendants and that of the handwriting expert is positive evidence tending to prove that appellant left the money at the drugstore and it is therefore absolutely inconsistent with his sworn statement before the grand jury that he did not do so, and is consequently incompatible with his innocence of the charge against him. This testimony, if believed by the jury without any inference or presumption, conclusively proved the fact that defendant was the person who left the money for Hervey. The only doubt in our minds as to the sufficiency of this evidence was whether expert testimony would comply with the requirements of the rule prescribed in prosecutions for perjury. We have not been able to find any authority holding that expert testimony is not sufficient in such a case. On the other hand, the decisions of our courts are to the effect that no distinction is to be made between expert testimony and other evidence as to its weight or preference. In the late ease of Rollins v. Porterfield, 183 Cal. 466, 469 [191 Pac. 913, 914], the court said: “Whatever the individual opinion as to the value of expert testimony, it has been clearly settled in this state that as regards the preference or weight to be given the testimony in any particular ease, the law makes no distinction between expert testimony and evidence of other character.” The same principle has been held in a long list of California cases. (Estate of Blake, 136 Cal. 306 [89 Am. St. Rep. 135, 68 Pac. 827]; People v. Wilkins, 158 Cal. 530 [111 Pac. 612] ; Estate of Hess, 183 Cal. 589 [192 Pac. 35]; Estate of Nelson, 191 Cal. 280 [216 Pac. 368].) The testimony of the drugstore attendants and the handwriting expert being sufficient to establish the falsity of appellant’s statements before the grand jury that he did not leave the package containing the money at the drugstore, the next question that arises is whether there is sufficient corroboration of this testimony to meet the requirements of section 1103a of the Penal Code. In the first place, we have the testimony of the witness Hervey who testified that appellant, only a few minutes before Hervey called at the drugstore and asked for the money, had told him that the money was at the drugstore and that he could get it by calling for a package left there for “George Allen or Ruth Allen.” This circumstance standing alone would amount to incriminating. evidence against the appellant. That appellant informed Hervey where and how to get the money which was to be used for the purpose of bribing the officer, raised a strong inference of appellant’s complicity in said crime, and when this evidence is considered in connection with the other evidence in the ease, that appellant actually left the money at the drugstore for Hervey, it tended in a marked degree to corroborate this latter evidence. In addition, however, to the testimony of Hervey, we have the witness Lindquist and the proprietors and employees of the Pelton Apartments. Lindquist testified that he had no friend by the name of Eollins and that he did not tell appellant he had, or that any person by the name of Eollins would help him get bail. The witnesses from the Pelton Apartments testified that no person by the name of Eollins resided there at or near the seventeenth day of May, 1923, the day appellant testified that he telephoned to Eollins and the latter informed him that the $700 would be left at the drugstore. Appellant having given Hervey information as to where and how the latter could get the money, and having denied that he left the money where he told Hervey he would find it, was of necessity obliged to offer some explanation as to how he came into possession of the information he imparted to Hervey. This explanation was that Eollins had informed him of the place where the money would be left. The fact that his explanation as to the source from which he acquired this information was proven to be false, by the testimony of the witness Lindquist and the proprietors and employees of the Pelton Apartments, strongly corroborated the other evidence in the case that the appellant himself placed the money at the drugstore for the use of Hervey. The corroboration required under section 1103a of the Penal Code is the same as that required under section 1111, regarding the testimony of an accomplice. “There is no essential difference between Section 1103a of the Penal Code and Section 1111, in so far as the law requires that the corroborating evidence ‘shall tend to connect the defendant with the commission' of the offense.’ ” (People v. Woodcock, 52 Cal. App. 412, 418 [199 Pac. 565, 568].) “The corroborating evidence may be slight . . . ; nevertheless, the requirements of the statute are fulfilled if there be any corroborating evidence which, of itself, tends to connect the accused with the commission of the offense.” (People v. Melvane, 39 Cal. 614, 616; People v. Clough, 73 Cal. 348 [15 Pac. 5]; People v. McLean, 84 Cal. 480 [24 Pac. 32]; People v. Barker, 114 Cal. 617 [46 Pac. 601]; People v. Martin, 19 Cal. App. 295 [125 Pac. 919].) The testimony of appellant before the grand jury that he did not leave the money at the place indicated, must be considered in connection with his further testimony that Eollins told him the money was there in a conversation which he had with Eollins over the telephone at the Pelton Apartments, and that he had such conversation with Rollins at the instance of Lindquist. Proof that Lindquist had no such conversation with appellant, and that he knew no such person by the name of Rollins, and that no such person by the name of Rollins was at the Pclton Apartments at the time appellant claims he telephoned to Rollins tended to prove the falsity of his testimony that he did not leave the money at the drugstore. Especially is this true when we take into consideration the further fact that appellant had told Hervey where the money was left and how it could be obtained. These statements of appellant before the grand jury were so intimately connected and were so dependent one upon the other, that proof of the falsity of one of such statements tended to prove the falsity of the others. We are, therefore, of the opinion that the evidence given by the drugstore attendants and Carlson that defendant left the money at the drugstore finds sufficient corroboration in the testimony of Hervey and also in the testimony of Lindquist and the proprietors and employees of the Pelton Apartments. . In connection with appellant’s claim that the evidence is not sufficient to support the verdict, he makes the further contention that he was acquitted of the charge set forth in the first indictment and that such acquittal was an acquittal on all assignments of perjury set forth in the second indictment which were also contained in the first indictment, and that the court, in determining the question as to whether the evidence is sufficient to support the verdict, is precluded from considering any evidence' in the case which is applicable to any of the assignments of perjury contained in the first indictment. As we have before noted, two indictments were found against appellant. In the first only a small portion of appellant’s testimony before the grand jury was set out and charged to have been false, and in the second a much larger portion of his testimony before the grand jury was alleged to be untrue, including all that contained in the first indictment. By order of court the two actions were consolidated and the appellant was placed on trial on both indictments. Thereafter the case was tried as one action. In the instructions given by the court, not only those given by it upon its own motion and those at the request of the People, but also those given at the request of the appellant—the court made frequent references to “the indictment” and in no instance was any reference made to the first indictment or to the second indictment, or to any other fact or circumstances indicating that the defendant was being tried upon more than one indictment. In the instructions given at the request of appellant, “the indictment” is referred to twenty-four times, and in the instructions requested by appellant and refused by the court appellant refers to “the indictment” nine times, but in no instance in any of these instructions, which were .either given or refused by the court, does appellant refer to the first indictment or the second indictment, nor does he ask or request the court that the jury be instructed to render separate verdicts upon the two indictments. The jury rendered its verdict finding “the defendant guilty of perjury as charged in the indictment.” It was numbered, however, 21,289, being the number assigned to the action against the defendant upon the second indictment and before the actions had been consolidated. It would appear from these references to the proceedings of the court, that not only the court and the prosecution, but the appellant himself, treated the indictments, after the order of the court consolidating the actions, as one indictment. The jury, in rendering their verdict in the form in which they did, simply followed the course pursued by the court and all the parties to the action, including the appellant, and we think under these circumstances their verdict may well be treated as a general verdict finding the defendant guilty as charged of the crime for which he was placed upon trial in the actions as consolidated. Even if the jury had plainly indicated that their verdict only applied to the second indictment, they would thereby have found appellant" guilty of all charges contained in the first indictment for the reason, as already stated, that all assignments of perjury set forth in the first indictment were included in the second indictment. But conceding for the sake of argument the contention of appellant that there were two distinct and separate indictments upon which the defendant was placed on trial, and that the jury’s verdict only applied to the second indictment, did the failure of the jury to render a verdict upon the first indictment acquit the defendant of those assignments of perjury contained in the second indictment which were also charged in the first I In support of appellant’s claim that such verdict was an acquittal of all the charges which were contained in both. indictments, he relies upon a statement of the law found in 16 Corpus Juris at page 1107, as follows: “A conviction and judgment upon one of several counts, with no verdict upon the others, is an acquittal of the others.” A large number of cases are cited in the above work in support of this text. We have examined these cases but failed to find that any of them go to the extent claimed for them by appellant. And our attention has not been directed to any authority which holds that where a defendant is upon trial on two or more indictments, and the jury renders a verdict of guilty upon the charge contained in one of said indictments and fails to render any verdict upon the charge contained in the other indictment, that such failure of the jury to render a verdict upon one indictment affects in any manner whatever the verdict rendered upon the other of said indictments. The most that these authorities hold is that the failure of a jury to render a verdict as to all the charges upon which a defendant is being tried, is equivalent to or operates as an acquittal of the defendant as to those charges upon which no verdict was rendered and would be a bar to any subsequent prosecution of the defendant' upon said charges. This result would arise not from any verdict of the jury, but from the action of the court in discharging the jury without rendering a verdict. The same result would follow if the defendant had been placed upon trial upon a valid indictment before a jury and the jury discharged without the consent of the defendant and before the introduction of any evidence. The defendant could not thereafter be further prosecuted upon the charge contained in said- indictment, not because he had been acquitted by the jury at the former hearing, for he had not been, but because he had been once placed in jeopardy at said former hearing, and therefore, could not be again brought to trial upon the same charge. As far as the accused is concerned, the proceedings at the first hearing operated as and were equivalent to an acquittal of him, for the reason that he could not be further prosecuted on said charge. This is made clear in a number of the eases cited in Corpus Juris in support of the statement from the text above quoted. “Doubtless, where a jury, although convicting as to some, are silent as to other counts in an indictment, and are discharged without the consent of the accused, as was the fact in the Dealy case, the effect of such discharge is ‘ equivalent to an acquittal, ’ because, as the record affords no adequate legal cause for the discharge of the jury, any further attempt to prosecute would amount to a second jeopardy, as to the charge with reference to which the jury had been silent.” (Selvester v. United States, 170 U. S. 262 [42 L. Ed. 1029, 18 Sup. Ct. Rep. 580, see, also, Rose’s U. S. Notes].) “Where on a trial on an indictment of different counts, there is a specific verdict of guilty on one count, and the verdict is • silent as to the other counts, and there is a conviction on the verdict of guilty, it is a bar to further prosecution on the counts on which the verdict is silent. So much is settled in this state.” (People v. Dowling, 84 N. Y. 478, 483.) ; “The question of guilt or innocence of both offenses charged was submitted to the jury, and that body found him guilty of but one, and designated which. Trial and conviction upon this indictment is a bar to any subsequent prosecution for the larceny charged. ... It will be equivalent to a verdict of not guilty on such counts.” (Guenther v. People, 24 N. Y. 100.) It follows, therefore, in the present action, that the appellant was not acquitted of the assignments of perjury set forth in the first indictment by the failure of the jury to render a verdict upon the charges contained therein. If any advantage can accrue to appellant by such failure, it would be that he could plead once in jeopardy to any attempt which might be made in the future to prosecute him upon said charges. His claim, however, that the court is precluded from considering the evidence applicable to the assignments of perjury set forth in the first indictment, in determining whether the evidence is sufficient to support the verdict of the jury as rendered, is untenable and finds no support in law or reason. As we view the law, it is the right and duty of the court to resort to all such evidence in deciding the question of the sufficiency of the evidence to justify the judgment. The next point urged by appellant in support of his appeal is that the court erred in the admission of the following evidence: (1) That relating to an alleged conspiracy between appellant and Lindquist involving the forging and uttering of certain bail bonds, and in the refusal of the court to permit appellant to show by the records of a former case that he had been acquitted by the jury of said charge of uttering said forged bail bonds; and (2) In permitting the prosecution to impeach its own witness Hervey, and in so doing to introduce incompetent evidence under the guise of refreshing his recollection. The testimony relating to the conspiracy between appellant anl Lindquist involving the forging and uttering of certain bail bonds was admitted over the repeated and strenuous objection of appellant. It tended to show that on the day Lindquist was released from prison, he called upon appellant and arranged with him for the release of .Gilbert and Johnson, then in the county jail awaiting trial upon the charge of grand l