The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1895-12-21
FRANK CHERRY A FREE MAN
The Grand Jury Indictments
Quashed
DID NOT PFRJURE HIMSELF
Because His Oath Was Not Necessary
TO His Demands
the Judge Who Certifies to the Work.
General Court Notes

Frank w. Cherry, the crooked little STEM
ographer indicted by the grand jury on
half dozen charges of perjury in swear
ing falsely to demands for transcribing tes-
timony in examinations in City Justice
Morrison's court, walked out of depart
ment one of the superior court yesterday
morning, Judge Smith having ruled that
under the law no public offence had been
committed. 1t will be remembered that
Cherry has never denied that he ''fatted
up" his notes, and swore to demands
largely in excess of what he had really
earned, but has been making his fight or
technicalties. His attorneys, Messrs. Da-
Wis and Rush, first challenged the grand
jury on the usual statutory grounds, but
after a searching inquiry Judge Smith
held that the jury was legally en-
paneled and was legal body. Messrs.
Davis and Rush then raised the
no crime in swearing falsely to his de-
mands, for the reason that his oath was
not necessary to collect the same; that the
demands of court stenographers were
really audited by the judge in whose court
the work was done, and that under the
statutes all that was necessary was for the
Judge to certify to the correctness of the
the same. The case was argued at length
before Judge Smith, who continued the
case to give the district attorney an oppor-
tunity to look up authorities. Deputy Dis
trict Attorney McComas, after an exhaust
i've search, could find no law making it
obligatory on stenographers to swear to
their demands. and did not file brief.
Judge Smith accordingly gave the follow
ing decision yesterday morning:
The defendant WAS indicted Dy the grand
jury for the crime of perjury. The alleged
perjury consisted in falsely swearing to an
account containing his charges for services
as shorthand reporter in Police Justice
Morrison's court, and The contention of
defendant under his demurrer is that the
facts set out in the indictment do not con-
sttute public offense, in this: That no
oath was required by law as prerequisite
to the allowance and payment of his
claim, and if not such matter or pro-
ceeding in which all oath was required
then the oath was superfiuous and not
material, and therefore not perjury.
think it too plain to call for discussion
there can be no perjury. Was the oath re-
quired by law in order to the auditing and
payment of defendants account?
The law in reference to the allowance
and payment of these claims of reporters
in justices and police magistrates courts is
found in section 500, subdivision 6 of
penal code and is as follows:
"The reporters compens alton shall be
fixed by the magistrate before whom the
examination is had and shall not exceed
that now allowed reporters in the superior
courts of this state and shall be paid out of
the treasury of the county or city and
county in which the examination is had on
the certificate and order of the said magis-
trate.
II 10 Mo ipIx apporopt Prom, tho fororoinr
that the claim of a reporter in such courts
is paid on the certificate and order of the
magistrate. The claim does not 60 before
the board of supervisors, and they have
nothing to do with it; and if paid on the
certificate and order of the MAGISTRATE, no
oath is necessary for it's payment. There
is no oath required that the magistrate
making the magistrate responsible for the
proper allowance of the claim does 80 upon
the theory that the reporter is an officer of
his court; an integral part of the court !;
his transcript belongs to the records of his
court; indeed, are the official state.
ments of what transpired in his court upon
a preliminary hearing; and the magistrate
under the law must take judicial notice of
the same.
An oath is no more required of short
hand reporter in matter of this kind than
wou'd an oath be required of the clerk OF
the court that he had properly made up
the records of the court. But whatever the
reason the language of the section is plain
and by its terms no oath is required. See
ex-parte Refs 81 California, 233; Aid SO.
ciety VS.. Refs, II California, 627; Meal.
lister vs.. Hamlin, S3 California, 361 ex
parte WILDER, 81 California, $40.
1t follows, then, that the oath in ques
ton was extra judicial-not necessary to
the allowance of the claim, and therefore
not material, and hence not perjury. The
demurrer for these reasons is sustained