22 P.2d 757 | Cal. Ct. App. | 1933
The appellant was charged by an information with the offense of violation of chapter 339 of the Laws of 1923 (the Firearms Act), more specifically, the possession of a firearm capable of being concealed upon the person, he having been convicted previously of a felony. Having waived a trial by jury, he was found guilty and appeals from the judgment and the order denying his motion for a new trial. At the commencement of the trial it was stipulated that the case be tried upon the preliminary transcript, which was read into the record.
Pursuant to section
[1] It is urged that the failure of the court to set aside the stipulation of the parties before granting the prosecution permission to reopen the case was erroneous, because it left the defendant bound by its terms and at the same time relieved respondent from its effect. Appellant maintains that he was thereby denied his constitutional right to demand a trial by jury, which he would have requested in the first instance could he have anticipated this departure from the agreement of the parties. It is a well-established principle of law that a court in its discretion may permit the prosecution to reopen the case for further testimony, and its action in this regard will not be disturbed in the absence of a showing of clear abuse of discretion. (People v. Champion,
[2] Subsequent to the denial of the defendant's application for probation, his motion for a new trial was made on all of the statutory grounds. The trial judge denied the motion forthwith in the following language: "Motion denied. I think you are too late anyway." Appellant insists that this erroneous opinion on the part of the trial judge (People v. Lamattina,
[3] It is next contended that the court erred in permitting the prosecution to introduce in evidence a certified copy of a judgment of conviction from the state of Ohio, which appellant insists is not a prison record within the requisites of section
[4] Finally, it is insisted that section
In this regard appellant first assails the section as constituting special legislation regulating the courts of justice (sec. 25, subd. 3, art. IV) in that it permits the proof of an element of the corpus delicti by hearsay testimony. Such a construction, however, would ignore the well-established rule recognized by courts, both state and federal, that the legislature has the power to change rules of evidence and to create presumptions. (People v. Bullock,
[5] The contention is further made that as proof of the prior conviction was not made by witnesses confronting him, the defendant was deprived of the right of due process of law by the said section. This is contrary to the rule announced in People
v. Bullock, supra, in the favorable construction of a portion of section
Although the right of a defendant to be confronted by witnesses is fundamental, it is not expressly guaranteed by the Constitution of this state, and the provisions of the sixth amendment to the federal Constitution are not applicable here (People v. Wilson,
[6] It is finally urged, in this connection, that the section is discriminatory in contravention of article I, section 21, of said Constitution, by placing such a burden of proof upon persons accused of this particular offense. In this regard, however, it cannot be questioned that the provision, as a rule of evidence, applies with equal effect to all persons who are compelled to overcome the same. We are of the opinion that the classification occasioned by the terms of the statute is a reasonable and natural one. (See People v. Nakamura,
The judgment and order denying defendant's motion for a new trial are affirmed.
Conrey, P.J., and Houser, J., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 30, 1933.