Her testimony in this case is, of course, direct evidence that the accident happened, and that her testimony in 1964, which she attributes to a "block out" of all that was connected with Pennington, was false. (See People v. Baranov (1962) 201 Cal.App.2d 52, 57 [ 19 Cal.Rptr. 866]; and People v. Todd (1935) 9 Cal.App.2d 237, 242 [ 49 P.2d 611].) She claims that this testimony cannot be used to independently furnish the direct evidence of the falsity of her testimony because it was elicited after the court erroneously denied her motion for an advisory verdict at the conclusion of the prosecution's case.
This does not mean that there must be a denial in the very words of the defendant's testimony ( People v. Macken, 32 Cal.App.2d 31, 35 [ 89 P.2d 173]; People v. McGee, 103 Cal.App. 149, 150 [ 284 P. 229]; People v. Chadwick, 4 Cal.App. 63, 70 [ 87 P. 384, 389]) but that there must be testimony by at least one witness furnishing direct evidence of facts contrary to, or absolutely incompatible or physically inconsistent with, that sworn to by the accused. ( People v. Wells, supra, 103 Cal. 631, 632; People v. Baranov, 201 Cal.App.2d 52, 58 [ 19 Cal.Rptr. 866]; People v. Di Giacomo, supra, 193 Cal.App.2d 688, 692; People v. O'Donnell, supra, 132 Cal.App.2d 840, 844 et seq.; see 2 Witkin, Cal. Crimes (1963) ยง 856, pp. 803-804.) [4] Evidence that establishes facts from which the falsity of an alleged perjured statement may or may not be inferred is insufficient under the direct evidence rule.
( People v. Viniegra (1982) 130 Cal.App.3d 577, 583-586 [ 181 Cal.Rptr. 848] .) Whether a statement made under oath was willfully and intentionally false is a question of fact for the trier to determine. ( People v. Baranov (1962) 201 Cal.App.2d 52, 58-59 [ 19 Cal.Rptr. 866].) If jurors are capable of deciding whether a false statement under oath was willfully made (cf.
Neither is recantation a defense in the case of testimonial perjury. ( People v. Baranov (1962) 201 Cal.App.2d 52 [ 19 Cal.Rptr. 866] .) In either case, the accused is free to come forward and make restitution or retract the false statement.
There does appear to be some contradiction in the decided cases concerning the qualitative sufficiency of the corroborative circumstantial evidence. E.g., one line of authority indicates that the corroboration must be by circumstances which of themselves independently tend with a reasonable degree of certainty to show guilt ( People v. Baranov (1962) 201 Cal.App.2d 52 [ 19 Cal.Rptr. 866]) while another takes a contrary view ( People v. Todd (1935) 9 Cal.App.2d 237, 241 [ 49 P.2d 611].) The cases are consistent, however, in holding that the corroborative evidence may be circumstantial as well as direct; it may be discerned in the testimony and behavior of the accused himself, both on the witness stand and elsewhere ( People v. Agnew (1947) 77 Cal.App.2d 748, 754 [ 176 P.2d 724]) and the manner in which the accused testifies and the unreasonableness of his story may serve as the strongest kind of corroborative evidence.
[2] 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., ยง 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.