¶1Defendant was indicted for, and convicted of, the crime of perjury.
¶2It was charged that in qualifying as a surety upon the bail bond of one Kate Farley, who had been held to answer upon a charge of grand larceny, the defendant falsely swore that he was the owner of a certain piece of real property in the city and county of San Francisco.
¶31. Upon the trial, evidence was introduced which traced the record title to the property into one Hilda Strassman, more than a year before the date of the alleged perjury. Here the evidence of ownership came to an end. No witnesses were called to prove, and no other evidence was introduced to show, who was the *687owner, or in possession of the property, at the time when defendant made affidavit to his ownership. Hilda Strassman was not called as a witness, and there was not even the negative evidence of her testimony that she had not conveyed to the defendant, or to another, the title which had vested in her.
¶4That a conviction of perjury cannot be supported upon such insufficient and incomplete evidence does not admit of discussion. The only argument advanced by the people is that, having showed title in Hilda Strassman more than a' year before the date of the alleged crime, the law presumes that she continued to own it until the defendant overcomes the presumption. But all such disputable presumptions give way before the presumption of innocence which belongs of right to every defendant, and which remains with him until the prosecution by convincing proof has established his guilt. As is said in People v. Douglass, 100 Cal. 1, there cannot be two presumptions in a criminal case. In the recent case of Hunter v. Hunter, 111 Cal. 261, this court considered at some length the question of conflicting presumptions, and quoted with approval from Matthews on Presumptive Evidence: " A charge of an act of immorality or of disobedience of a positive law will not be received unless supported by direct evidence. Circumstances showing probability merely are not enough; the fact averred must be conclusively proven.”
¶52. While the indictment charged the defendant with having committed perjury in justifying upon the bail bond of Kate Farley, held for trial for grand larceny, and while the recital in the bail bond itself was that Kate Farley had been committed for trial for the crime of grand larceny, the evidence, and all the evidence, showed that in fact Kate Farley had been arrested, examined, and held to answer for the crime of robbery. So far as the proofs disclose, she was not under arrest for grand larceny or for any other crime saving that of robbery. Kate Farley, then, being in custody for robbery, would not be entitled to her liberty upon the bail *688bond given, and it was mere negligence upon the part of the officer having her in charge to release her. There was no justification in law or in fact for' her enlargement upon the robbery charge under the bond reciting the separate and distinct crime of grand larceny.
¶6The materiality of defendant’s false oath is shown by the facts pleaded in the indictment, that it was given in the course of judicial proceedings pending against Kate Parley. Upon the trial there was no evidence offered to substantiate these averments; no showing was made that proceedings upon a charge of grand larceny were or had been pending against her, and the proof was limited to the establishment of a fact at total variance with the charge in the indictment, namely, that the proceedings against Kate Farley were for the crime of robbery. “In respect to records,” says Wharton on Criminal Evidence, section 115, “ great care is necessary, as any variance at common law is fatal. Thus, at common law, if the whole record to which perjury is incidental is not accurately set forth, there must be an acquittal.”
¶7The question, then, resolves itself to this: The indictment charged the perjury to have been committed in the course of the proceedings had in the matter of the prosecution against Kate Farley for the crime of grand larceny. It was a necessary averment to show the materiality of the false oath. The matter was one of record. The record was, or should have been, before the officer who drew the indictment. Upon the trial no effort was made to support this averment, and the prosecution rested its case upon evidence of record proceedings in another and different case. The averment being material, the variance between it and the proof is fatal. Or even if the designation of the crime by any possible stretch of the rule could be considered as descriptive matter, still it having been pleaded must be proved as laid. (Bishop’s New Criminal Procedure, sec. 488, subd. 2.)
¶8So far as the record discloses, defendant’s affidavit *689to the bail bond for grand larceny was not made in the course of any authorized proceeding or investigation, and was, therefore, immaterial and in no way connected with any matter in which a perjury could be committed.
¶9So plainly marked is the variance that the facts themselves foreclose the need of discussion. But in illustration of the principles enunciated, and of their application to cases where the failure or omission has been much less conspicuous than that under review, may be instanced generally the cases of People v. Coon, 45 Cal. 672; People v. Cox, 40 Cal. 275; Moore v. State, 12 Ohio St. 387; State v. Crogan, 8 Iowa, 523; Chute v. State, 19 Minn. 271; while bearing specifically upon the question of perjury are those of State v. Bailey, 31 N. H. 521; State v. Tappan, 21 N. H. 56; Brown v. State, 47 Ala. 47; Commonwealth v. Monahan, 9 Gray, 119; United States v. Bowman, 2 Wash. C. C. 328.
¶10It is unnecessary to discuss any of the other points presented by appellant.
¶11The judgment is reversed.
¶12McFarland, J., and Temple, J., concurred.