Opinion
Crim. No. 159.
January 28, 1909.
APPEAL from a judgment of the Superior Court of Contra Costa County, and from an order denying a new trial. Wm. S. Wells, Judge.
The facts are stated in the opinion of the court.
Peter J. Crosby, for Appellant.
U.S. Webb, Attorney General, and J. Charles Jones, for Respondent.
Appellant was convicted of the crime of perjury, and in due time appealed from the judgment of conviction, and from the order denying his motion for a new trial. The appeal comes to this court upon the judgment-roll alone, there being no bill of exceptions or statement of the case in the record.
It is not contended that the information is in any way defective, nor is our attention called to any error committed by the court in giving or refusing instructions. The matter relied on by appellant for a reversal of the judgment and order in no way appears upon the record in this case. The perjury alleged against defendant is charged in the information to have been committed upon the trial of a certain criminal action, entitled "The People of the State of California, Plaintiff, against Ham Tong, Ho Sing, Louie You and Louie Poe, defendants," and in which said action it is alleged that the defendants therein were charged with robbery. We are asked to reverse the judgment and order in this case because in People v. Ho Sing we held that the information in that case did not charge the crime of robbery, but only the crime of larceny ( 6 Cal.App. 752, [ 93 P. 204]). But the information in that case is not part of the record in this case, and cannot be considered by us on this appeal. Any defect of proof to support the allegations of the information in this case, and any variance between the proof and the allegations, should be made to appear by a bill of exceptions or a statement of the case settled by the trial judge. In the absence of a bill of exceptions or a statement of the case containing the evidence, we must assume that the allegations of the information were supported by sufficient evidence. It is the duty of the appellant to show error by the record brought to this court upon his appeal.
No error appearing upon the record, the judgment and order must be affirmed, and it is so ordered.
Cooper, P. J., and Kerrigan, J., concurred.