231 P. 601 | Cal. Ct. App. | 1924
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *468
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *469 Defendant was convicted of the offense of having in his possession a pistol after a previous conviction of a felony. He appeals from the judgment and from an order denying his motion for a new trial.
[1] The first point made for reversal of the judgment relates to the alleged erroneous admission by the court of certain testimony going to the identification of defendant as the person who had theretofore been convicted of a felony. But inasmuch as the fact of defendant's prior conviction of a felony was established by evidence other than that to which objection is made, the error (assuming it to be such and that it did not result in a miscarriage of justice) was harmless.
Prejudicial error is also predicated upon the fact that the prosecution did not show that defendant's admissions were not made under duress or promise of reward. Appellant cites no authority to support such specification of error. [2] However, it may be stated that the rule requiring the prosecution to show that a confession was made freely and voluntarily, without promise of immunity or of reward therefor, does not apply to mere admissions. (People v. Ford,
[4] The statute under which defendant's conviction was had provides, among other things, that "no person who has *470
been convicted of a felony against the person or property of another . . . shall own or have in his possession or under his custody or control any pistol," etc. (Stats. 1923, p. 695.) Appellant urges that in one state a felony might consist in the commission of a designated criminal act, but which identical act in another state might be either a misdemeanor or no criminal act whatsoever; and consequently that the statute is discriminatory and unconstitutional. The statute, however, must be construed in the light of existing laws. Section
[5] It is next contended by appellant that there is no evidence to sustain the verdict that defendant was guilty "as charged in the indictment" — the specific point being that the indictment charged that the defendant had "in his possession a pistol after previous conviction of a felony"; and that defendant had been "convicted of a felony against the property of another, to wit, of the crime of burglary"; whereas, the evidence as to the defendant's admissions was that he was convicted of receiving stolen property, or "for carrying bombs in his car." The transcript of the proceedings had on the trial shows that an exemplified copy of the judgment on defendant's conviction of a felony in another state was introduced in evidence, from which it appears that the offense for which defendant was convicted was that of burglary. The allegation contained within the indictment is thus supported by the evidence, and the verdict in that particular is therefore legally unassailable.
Appellant further urges the unconstitutionality of the Statute under which defendant was prosecuted. It is contended that the statute is a bill of attainder in that in effect, because of an offense committed prior to the passage of such act, it deprives a citizen of a substantial part of his right of self-defense, and that it fixes punishment without judicial trial for a past offense. Appellant also claims that the statute is ex post facto, in that it makes punishable an act otherwise proper and lawful, to wit, the possession of firearms, *471 because prior to the passage of the act a person had been convicted of a felony. A bill of attainder has been defined as "a legislative act which inflicts punishment without a judicial trial"; and an ex post facto law is one which, among other things, may either aggravate a crime, make it greater than it was when committed, or which changes the punishment therefor and inflicts a greater punishment than was provided for when the crime was committed. (Cummings v. Missouri, 4 Wall. (U.S.) 277 [18 L.Ed. 356, see, also, Rose's U.S. Notes].) [6] That by the terms of the statute in question defendant is not to be punished without a trial is readily apparent. The commission of some offense, to wit, defendant's possession of firearms, must not only be judicially established, but likewise the additional fact of his previous conviction of a felony.
Regarding the point that for a past offense, to wit, the crime of burglary, for the commission of which defendant was first convicted, the statute in question seeks to deprive defendant of a substantial part of his right of self-defense — in other words, to punish him for an offense which was committed prior to the enactment of the statute here under consideration — it may be said that legislation of a similar character has heretofore received judicial approval in the case of People v. Smith,
In the case entitled Ex parte Gutierrez,
In the Matter of Application of Rameriz,
Section
[7] It therefore becomes apparent that the right of a citizen to bear arms is not acquired from any constitutional provision, and while it may be said that by the operation of the statute under consideration a citizen is deprived of one of his natural rights in that his ability to better defend himself from personal violence if offered will be somewhat lessened, such right is no greater than or different in character from any other natural right possessed by him. It is clear that in the exercise of the police power of the state, that is, for the public safety or the public welfare generally, such rights may be either regulated or, in proper cases, entirely destroyed. Acting within the scope of such power, the legislature, by a proper classification of its citizens, has declared that persons heretofore convicted of a felony shall not possess firearms, and while such citizens are thus deprived of a natural right, in the judgment and discretion of the legislature such deprivation tends directly to the accomplishment of the desired end. As has been indicated by the authorities cited herein, a reasonable basis exists for the classification of citizens of the state in the manner provided by the statute, and there can be no question of the uniformity of its operation upon all persons within the designated class.
[8] The rule is unquestioned that in the absence of a clear abuse of legislative discretion, where the subject of the act relates to the exercise of the assumed powers, the courts are unauthorized to interfere with a construction unfavorable to constitutionality.
Appellant further urges that the statute is unconstitutional in that it gives to the legislatures of states other than California *474 the power to enact new laws, or to amend existing laws, in effect defining felonies in California, and that the people of this state are powerless to invoke the referendum as to such enactments. The answer to such contention may be found in the fact, as heretofore set forth, that what constitutes a felony is defined by our laws, which would be entirely unaffected by any statute enacted by any other state with reference thereto.
[9] It is finally contended by appellant that the statute in question is unconstitutional in that it deprives a person of private property without due process of law. The rule applicable to the facts herein is clearly set forth in 5 California Jurisprudence, page 882, wherein it is said: "All property is held subject to the exercise of the police power, and provisions of the constitution declaring that property shall not be taken without due process of law have no application to cases where such power is lawfully exercised" (citing many California cases). The statement in Matter ofApplication of Rameriz,
No prejudicial error appearing in the record, it is ordered that the judgment and the order denying the motion for a new trial be and the same are affirmed.
Curtis, J., concurred.
Concurrence Opinion
I concur in the judgment. If the evidence had proved that the defendant acquired his ownership of the weapon before the statute went into effect, I would hold that he may not, by mere legislative fiat, be convicted of a crime for continuing to own and possess that which had lawfully become his property. A person may not thus be deprived of his property without due process of law. But the only evidence here is that he possessed the weapon several months after the act in question became a law. This was, prima facie, an unlawful possession by him, *475 since he had been convicted of a felony against the property of another. In the absence of any other evidence, I think that appellant is not in a position where he can successfully contend that the effect of the statute is to deprive him of property without due process of law.