People v. Smith

• Decision Date: 26 January 1967
• Docket Number: Cr. 12028
• Citation: 56 Cal.Rptr. 258,248 Cal.App.2d 134
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Yvonne SMITH, Defendant and Respondent.

Page 258

56 Cal.Rptr. 258

248 Cal.App.2d 134

The PEOPLE of the State of California, Plaintiff and Appellant, v. Yvonne SMITH, Defendant and Respondent.

Cr. 12028.

Court of Appeal, Second District, Division 2, California.

Jan. 26, 1967.

Rehearing Denied Feb. 23, 1967.

Hearing Denied March 22, 1967.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Chief, Appellate Division, Robert J. Lord, Deputy Dist. Atty., and Keith Glazer, Deputy Dist. Atty., for appellant.

Erling J. Hovden, Public Defender, Harkjoon Paik, Deputy Public Defender, and James L. McCormick, Deputy Public Defender, for respondent.

ROTH, Presiding Justice.

On October 8, 1965, respondent Yvonne Smith was charged with three counts of felony perjury in violation of sections 118 of the Penal Code and section 1550 of the Welf. & Inst.Code (now §§ 11050 and 11054 of the Welf. & Inst.Code).

On January 19, 1966, she demurred to the information on the ground that she cannot be prosecuted via section 1150 of Welf. & Inst.Code cited in the information, under the general perjury statute of the Penal Code, since section 1563 of the Welf. & Inst.Code (now § 11265) applies specifically to the crimes charged and makes the same misdemeanors and not felonies.

On January 28, 1966, the trial court sustained the demurrer. The People refused to amend. Judgment dismissing the information was entered February 24, 1966.

Prior to the time of the alleged perjury, Mrs. Smith was receiving aid from Los Angeles County for the support of her two children. On April 1, 1963, October 17, 1963, and April 23, 1964, Mrs. Smith signed, under oath, as required by section 11265 of the Welf. & Inst.Code, 'Statements of Facts Relating to Eligibility for Aid to Needy Children,' bi-yearly redeterminations of eligibility required by the county. Included on each form was the statement that there was 'no unrelated adults living with the family.' The People contend that during this period, one Morris R. Johnson was in fact living with Mrs. Smith and her children, and that she therefore committed perjury in signing the redetermination statements.

The sole question on appeal is whether Mrs. Smith could be prosecuted for felony perjury under section 118 of the Penal Code and section 1550 of the Welf. & Inst.Code, now sections 11050 and 11054 of the Welf. & Inst.Code, or as respondent contends, only for violation of section 1563 of the Welf. & Inst.Code, now section 11265 of that code.

Section 11265 of the Welf. & Inst.Code deals specifically with annual redeterminations of eligibility for aid to needy children, and concludes: 'Any person signing such certificate who willfully states therein any material matter which he knows to be false is guilty of a misdemeanor.'

Section 1550 of the Welf. & Inst.Code, repealed effective May 21, 1963, operative January 1, 1964, reenacted in 1965 as sections 11050 and 11054 without substantial change, but omitting provisions for an oath, death generally with all applications for aid in behalf of a needy child, initial and redetermination. The section stated in part: 'Every application for aid in behalf of any child shall be verified under oath, or shall contain a written declaration that it is made under the penalties of perjury. A county may require supplementary written statements in connection with an application for aid or the continuation of aid to be verified or signed under a like declaration. Any person signing any application or statement containing such declaration who willfully and Knowingly, with intent to deceive, states therein as true any material matter which he knows to be false is subject to the penalties prescribed for perjury in the Penal Code of this State.' (Emphasis added.)

Section 118 of the Penal Code is the general perjury statute, a restatement of the common law offense (People v. Dunstan, 59 Cal.App. 574, 576, 211 P. 813), making it a felony willfully to state Under oath as true matters known to the declarer to be false.

When the facts of an offense defined in a general statute, parallel the acts proscribed by a specific statute, there cannot be a prosecution for violation of the general statute. (People v. Swann, 213 Cal.App.2d 447, 449, 28 Cal.Rptr. 830.) In In re Williamson, 43 Cal.2d 651, 654, 276 P.2d 593, the court held that where the general statute would include the same matter as the special act, and thus conflict with it, the special act will be regarded as an exception or qualification of the general one, whether passed prior or subsequent to the general statute. (See also In re Joiner, 180 Cal.App.2d 250, 253, 4 Cal.Rptr. 667; People v. Wood, 161 Cal.App.2d 24, 29, 325 P.2d 1014.)

In People v. Silk, 138 Cal.App.2d Supp. 899, 291 P.2d 1013, the defendant, in applying for aid under the Old Age Pension Act, failed to disclose he was receiving social security payments from the United States government. He was charged with violation of section 484 of the Penal Code (theft) instead of the penalty provision of the Pension Act (§ 2007 of the Welf. § Inst.Code). The court held the prosecution under section 484 improper, stating at pages 901, 902, 291 P.2d at page 1015: 'The conflict between the general and specific law which is controlling here also appears from the fact that proof of such violation would meet the issues of the complaint drawn under Section 484 of the Penal Code, excepting only for the rule that the specific statute controls over the general. Since the material proof was exclusively a specific violation of Section 2007, that section controls to the exclusion of Penal Code, § 484.'

It is argued that Penal Code section 118 deals with false statements made Under oath and section 11265 makes no mention of an oath and that since Mrs. Smith signed the statements here in question under oath, her...