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The defendant in this case testified as a witness for the defendant Rube. He stated that he met Rube in Eureka near 7 o'clock in the evening of Saturday, April 29, 1922, Rube having a short time before arrived in Eureka on the stage from Crescent City, Del Norte County; that in a conversation with Rube the latter said to him that he had been working "up north” and that he was anxious to return to his home; that the defendant asked where his home was and Rube stated it was at Pepperwood. a distance of about twenty-five or thirty miles from Eureka; that Rube stated to him that he was short of money and that he did not like to be required to hire a car to take him home; that thereupon the witness said: “Well, I have a friend here, if I can see him, I oftentimes use his car. I will take you home, because I had never been down that way, I had only been over here a short time. Anyway I told him if he would pay the oil and gas and that sort of thing, and in case we had any tire trouble, I would take him home where he wanted to go." The defendant stated that he immediately started out to borrow the car from the friend to whom he had referred in his conversation with Rube and promised to meet him (Rube) within an hour in case he succeeded in securing the loan of the car; that he did secure the car and near the hour of 8 o'clock P. M., met Rube and drove him to his home at Pepperwood. Before leaving for Pepperwood, however, Rube stated to Burcham, so the latter testified, that he (Rube) desired to purchase some sugar and cornmeal to take home with him; that thereupon he (Burcham) drove the machine to the store of Hinch, Salmon & Walsh in Eureka; that Rube gave him $20 and asked him to go into the store and purchase three sacks of brown sugar and some cornmeal; that he (Burcham) entered the store and purchased the articles named, returned to the car and then proceeded on his way to Pepperwood; that, arriving at Pepperwood, Rube went to his home and he (Burcham) returned to Eureka.

In reply to questions by the district attorney on crossexamination, the defendant stated that the name of the man from whom he borrowed the car was E. L. Hartwell; that it was a Dodge automobile; that he and said Hartwell served together as soldiers in the war with Germany and were in Europe together during said war, He was asked where Hartwell resided at the time that he got the car and he replied that he was not certain, but believed that he stopped at a lodging-house known as the Metropole in the city of Eureka. He was then asked these questions and returned the answers which follow them: Q. Where is he [Hartwell] now? A. I could not say that. Q. How long did he remain in the county after that night? A. As much as a month. Q. Where did he stay during that time! A. I am not sure but I think he stayed at the Metropole."

Further cross-examining Burcham the district attorney asked him what his (defendant's) business was, to which he replied that he had worked at different kinds of labor in different places. Further questions by the district attorney on this line and answers by Burcham are as follows: "Q. What have you labored at since you have been in this county? A. Well, I tended bar awhile and worked in a gravel pit. Q. Where did you tend bar? A. At the Wave for about three months. (The Wave was the name of a soft-drink establishment conducted in Eureka at the times mentioned by the witness.] Q. When did you commence tending bar there? A. In March. Q. How long did you continue? A. Up until I guess the middle of July--no, I mean June. Q. What were your hours of work? A. 12 to 2 and 6 until 12. Q. From noon until 2 in the afternoon? A. Yes, sir. Q. And then after that from 6? A. Yes, sir, from 6 until 12 at night. Q. Were you on duty that night? A. No, sir. Q. Why were you not working that night? A. Well, I worked five or six weeks steady, and I wanted a night off. I had three nights off, not only that one."

It is upon the testimony above recited that the three counts of the indictment are predicated. The first was based upon the defendant's testimony that one E. L. Hartwell lived and was in Eureka on the twenty-ninth day of April, 1922; the second upon Burcham's testimony as to his alleged employment as a bartender in the Wave soft-drink saloon from the month of March to the month of June, 1922, and the third upon his testimony that he purchased sugar and cornmeal for the said Rube at the store of Hinch, Salmon & Walsh on the evening of said April 29th.

It is obvious that the object of the testimony of Burcham that he took Rube from Eureka to Pepperwood on the twenty-ninth day of April, 1922, leaving the former place near the hour of 8 P. M., was to overcome the effect of the evidence introduced by the prosecution tending to support the theory that Rube and his confederate stole the Oldsmobile car of Pidgeon at Eureka on said night and used said car in the furtherance of their scheme to rob the Bank of Fortuna.

[1] It is not necessary to consider and determine herein whether the testimony referred to in each of the counts was as to a matter material to the issue" in the case of People v. Mahach and Rube, since we are of the opinion that the contention that the evidence is insufficient to support the verdict is well taken as to all the counts. Referring now to count 1, an examination of the record has convinced us that there is no testimony to show that there was no such person as E. L. Hartwell residing in the city of Eureka on the twenty-ninth day of April, 1922. There is some evidence in the record that the defendant Burcham at one time resided in the town of Redding; that there at the same time lived in or about said town a man by the name of E. L. Campbell, who was also known as E. L. Hartwell; that said Hartwell met his death in an accident that occurred near Redding some six or eight months prior to the time at which the robbery of the Fortuna Bank took place. There is also some testimony that the defendant was an acquaintance of said Campbell or Hartwell and that the latter, while living in Redding, owned a Dodge automobile. There was no testimony showing or tending to show that a man by the name of E. L. Hartwell did not live or reside in the city of Eureka on the twenty-ninth day of April, 1922, or that a man of that name had not resided there for several months prior to and down to and including said date. In other words, for aught that the record discloses, there might have been such a man residing in said city at the times material to this inquiry. Section 1103a of the Penal Code declares that "perjury must be proven by the testimony of two witnesses, or of one witness and corroborating circumstances.” The testimony introduced for the purpose of establishing the charge of perjury set forth in the first count of the indictment falls far short of meeting the requirements of said section of the Penal Code. Indeed, to uphold a conviction of the defendant upon the charge that he perjured himself in testifying that E. L. Hartwell lived or was in Eureka on the twenty-ninth day of April, 1922, it would be necessary to rely wholly upon the testimony that a man sometimes known as E. L. Hartwell lived in Redding, that he owned a Dodge automobile and that the defendant was acquainted with him. This, in effect, would amount to no more than predicating the conviction of the accused upon the presumption of “identity of person from identity of name." (Sec. 1963, subd. 25, Code Civ. Proc.)

As to the defendant's alleged false testimony as to his employment in the Wave saloon from May to June, 1922, and which constitutes the foundation for the charge of perjury contained in the second count of the indictment, it is clear that, unless the purpose of the inquiry as to his said alleged employment was to show that he was not in Eureka on the twenty-ninth day of April, 1922, his testimony as to such employment, as well as that of the people tending to prove that his statement that he was so employed during the period mentioned was false was wholly immaterial to any issue in the case of the People v. Mahach and Rube. We can conceive of no other theory upon which said testimony may be held to have been material in said case. But, conceding that the purpose of the inquiry as to his employment during said period was founded upon that theory, and that it was, therefore, pertinent and material, still an examination of the evidence has convinced us that the charge of perjury based upon said testimony is not sustained or supported by that degree or quantum of proof required by the statute. It is not necessary to enter herein into an analytical review of the testimony to verify this conclusion. It is enough to say that the proprietor of the Wave saloon, as well as other witnesses, testified that, during the months mentioned, the defendant did at times work in said saloon. In fact, the proprietor himself, a witness for the people, testified that he did work in the said saloon at different shifts in the months of April and May, 1922. (Trans., p. 152.) There is no testimony contradicting this testimony, nor, indeed, any testimony that he did not at intervals work in said saloon up to the twenty-ninth day of April, 1922.

As to the third count, the testimony presented in support thereof comes entirely from the sales clerk and the owners of the store of Hinch, Salmon & Walsh. Their testimony amounted merely to this: That some of them could not recall that the purchase claimed to have been made by the defendant at said store was made on the evening referred to; that, while one or two of the rks had at different times seen the defendant in said store, none could recall that he had seen him therein on the evening of the said twentyninth of April; that none of them remembered having sold the defendant on said evening three sacks of sugar and some cornmeal, or having sold him any articles of merchandise on said evening; that maintained in the store was an International cash register containing one main drawer and eight subsidiary drawers; that each of the subsidiary drawers was assigned for use to a different sales clerk; that the register tape always showed each separate sale and the amount thereof in money and also indicated a total of all sales; that goods in large bulk were kept in the warehouse adjoining the store and that where sales of such goods were made they were customarily delivered directly from the warehouse and not taken through the main store for delivery. The tape of the register for the twenty-ninth day of April, 1922, was introduced in evidence and it showed no such sale as the defendant claimed was made to him on said day. All of these witnesses admitted that a sale might be made and the clerk making it inadvertently omit to record it on the register. The tape of said day contained some figures which were so blotched” that it was impossible to decipher them or tell whether they represented one, two or four figures. One of the proprietors of the store, though, thought or "estimated" that the sale represented by the blotched” figures was made some hours on the 29th of April prior to the time of day at which the defendant testified that he purchased the sugar and cornmeal.

The above is practically all the showing that the people made in support of count three of the indictment. [2] All the witnesses (clerks in the store and the proprietors) testifying that they had no recollection of selling the defendant the sugar and cornmeal on the day mentioned must, within the meaning of section 1103a of the Penal Code, be regarded as one witness. In other words, the testimony of any one of said witnesses was not corroborative of the testimony of any other. Assuming, therefore, that any one witness of

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