People v. Walker
| Decision Date | 03 January 1967 |
| Docket Number | Cr. 3886 |
| Citation | 247 Cal.App.2d 554,55 Cal.Rptr. 726 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Chandler J. WALKER, Defendant and Appellant. |
William T. Sweigert and James P. Carroll, Sacramento, for appellant.
Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Nelson Kempsky, Deputy Atty. Gen., Sacramento, for respondent.
Chandler J. Walker was convicted of three counts of perjury. (Pen.Code, sec. 118.) Pronouncement of judgment was suspended and probation granted. He properly appeals from the order granting probation.
The crucial question presented on this appeal is whether an oath was taken by Walker before a notary public with sufficient formality to permit a charge of perjury within the meaning of section 118 of the Penal Code.
We hold there were irregularities in the manner in which the notary administered the oath to Walker but that an oath was administered and that perjury was proved. Other points urged for reversal are without merit and the judgment should be affirmed. Explanation of our holding will follow a statement of the facts.
Walker was the former owner of the West Coast Construction Company, and as such he was in the home improvement business specializing in the sale of aluminum products. He employed salesmen whom he described as 'independent contractors.' These salesmen actually secured the orders.
Three sales by the Walker organization are involved in three counts of perjury prosecutions on which Walker was convicted. A discussion of one of these sales in detail will suffice for the purposes of this opinion.
This was a sale by these 'independent contractors' to Willis Dunbar and his wife. They agreed to have aluminum siding and a roof and canopy placed on their home for the sum of $3,000. To their knowledge they signed only a credit report and a job authorization order. These were in the form of a printed pad with carbon paper inserted between counterparts. The salesman told the Dunbars that they would have to sign a third copy of the credit application because the carbon paper had not shown an impression of their signatures on the third counterpart. They did so, believing they were only signing the credit application. A work completion order was signed upon completion of the job. Dunbar testified that at no time did he sign a deed of trust; Mrs. Dunbar's testimony was similar to that of her husband's; and she too testified that she never knowingly signed a deed of trust. In fact the proposition that a deed of trust would be given had never been discussed.
A deed of trust was introduced signed by the Dunbars. It also included what was proved to be the signature of Walker 'as witness.' A form in the following language appears thereon: '(P)ersonally appeared Chandler J. Walker, personally known to me to be the person whose name is subscribed to the within Instrument, as a witness thereto, who being by me duly sworn deposes and says: That he resides in Sacramento and that he was present and saw Willis F. Dunbar & Lily B. Dunbar personally known to him to be the same persons described in and whose names are subscribed to the within Instrument as Buyers, execute and deliver the same, and said Buyers acknowledges (sic) to said affiant that they executed the same; and said affiant subscribed his name thereto as a Witness.' This form was signed by Leonard C. Silvani, a notary public. The form is partially a printed form. The personalized portions were proved to have been written in by Walker who presented the instrument to Silvania to be notarized.
Walker, who testified in his own behalf, admitted that he had not seen the Dunbars sign the deed of trust. His defense to the charge of perjury was that he was not under oath when he appeared before the notary.
Silvani, the notary, testified that Walker Was under oath. In addition to being a notary, Silvani was engaged in the real estate mortgage business. He testified that Walker, periodically during the period when the transactions involved in the prosecution occurred, had called upon him to perform notarial duties. His testimony as to the manner in which he had administered the oath is equivocal. We have set forth material portions in a footnote. 1
The evidence regarding the other charges is similar. It is unnecessary to discuss them in detail. The prosecutions showed with reference to the charge involving other customers (Houston and Herise Brengettsey) that Walker had told a deputy district attorney that he had signed the deed of trust as a witness to their signatures but without actually having been present when they signed; that he had written up the certificate before presenting it to Silvani and had obtained Mr. Silvani's signature as the notary and that the notary's seal had been affixed. (He also stated that in all cases this procedure was for the purpose of making it possible for him to record the deeds of trust.)
As to his understanding about being under oath Walker had stated to the attorney: 2
Government Code section 27287 provides in part here material: '(B)efore an instrument can be recorded its execution shall be acknowledged by the person executing it * * * or proved by subscribing witness * * * and the acknowledgment of proof certified as prescribed by law.'
An 'acknowledgement' is not here involved; there was a purported proof by a purported subscribing witness with a purported sworn certificate. Such proof, of course, under oath, with the notary's certificate is a prerequisite to recordation. (Govt.Code, sec. 27287, supra.) The evidence shows Walker knew this. It was his purpose to obtain a recordation of the deed of trust established to have been obtained fraudulently. The latter act is not that for which he was being prosecuted. This does not mean that knowledge of the necessity of an oath is unimportant.
Section 118 of the Penal Code provides in part that 'Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent * * * person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false * * * is guilty of perjury.'
A false statement pursuant to the proof or acknowledgement of an instrument before a notary public may be the basis of a charge of perjury. (Ex parte Carpenter, 64 Cal. 267, 30 P. 816; Civ.Code, sec. 1181; see also People v. Teixeira, 59 Cal.App. 598, 211 P. 470.) This rule, of course, applies to an oath administered by a notary on a proof by a subscribing witness.
To convict one of the crime of perjury in violation of Penal Code section 118 it must be proved that the defendant: (1) took an oath that he would testify, declare, depose or certify truly before (2) a competent tribunal or person (3) that such oath was taken in a case in which an oath may be lawfully administered, and (4) that the accused wilfully and contrary to such oath stated as true, a material fact which he knew was false. (People v. Gilbert, 217 Cal.App.2d 662, 666, 31 Cal.Rptr. 920; People v. Baranov, 201 Cal.App.2d 52, 57--58, 19 Cal.Rptr. 866.)
The manner of administering an oath in 'an action or proceeding' is carefully spelled out. (Code Civ.Proc., sec. 2094.) Singularly enough we find no special form prescribed for the administering of an oath when, as here, a party is certifying to his act of witnessing the signatures to an instrument in writing.
Section 121 of the Penal Code provides: 'It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner, or that the person accused of perjury did not go before, or was not in the presence of, the officer purporting to administer the oath, if such accused caused or procured such officer to certify that the oath had been taken or administered.'
Although no California authority, applying this section has been cited by counsel (and we find none) with facts paralleling those of the case at bench, there Are cases which assist us in determination of the problem presented.
In Peters v. City and County of San Francisco, 41 Cal.2d 419, at p. 426, 260 P.2d 55 at p. 60, our Supreme Court has stated:
The case before us shows, we think, closer compliance with the requirements of oath-administration than was present in Peters, supra.
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