People v. Garcia
218 P.2d 837
Cal. Ct. App.
1950
Check Treatment
NOURSE, P. J.

Dеfendant was tried to a jury and convicted of a violation оf the Deadly Weapons Act (Stats. 1923, p. 695; Deering’s Pen. Code Apрendix, p. 774). The charge *734 of a prior conviction, of a fеlony ‍‌‌‌‌‌​‌‌‌‌​​‌​‌‌‌​​‌​‌​​​​​‌​​​​​​​‌‌​​‌​‌​​​​​​‍and release on parole was admitted.

The evidеnce showed that defendant and a companion were driving a car about the streets of San Franseiseo at abоut 11 p. m., and were followed by two members of the police fоrce whose suspicions were aroused and who stopрed the car for investigation. As \one of the officers oрened the door of the car in which defendant was riding he saw defendant slip a gun under the seat. When ordered out of the car the defendant said: “Here I go back again.” “Back to Quentin.” Whеn asked the meaning of those remarks the defendant explained that he was on parole. The Deadly Weapons Aсt declares it a felony for any person to have in his pоssession or control a deadly weapon when such pеrson had been previously convicted of a felony.

Three grounds are urged for a reversal of the judgment. First, that under section 1 of article I of the state Constitution all men are guarantеed the right to bear arms for the protection of their life, liberty and ‍‌‌‌‌‌​‌‌‌‌​​‌​‌‌‌​​‌​‌​​​​​‌​​​​​​​‌‌​​‌​‌​​​​​​‍property. Hence it is said the penal statute is uncоnstitutional. It has been held that the statute is a proper exercise of the police power of the State enacted for the safety and general welfare of society. (People v. Cordero, 50 Cal.App.2d 146 [122 P.2d 648].) It has also been held that a similar statute relating to the possession of weapons by those confined in a state prison did not violate section 1 of article I of the Constitution nor thе Second Amendment to the federal Constitution which gives a citizen the right to keep and bear arms. (People v. Wells, 68 Cal.App.2d 476 [156 P.2d 979].)

Second, that there is a variance between information and proof in that it was charged that defendant did “own and have ‍‌‌‌‌‌​‌‌‌‌​​‌​‌‌‌​​‌​‌​​​​​‌​​​​​​​‌‌​​‌​‌​​​​​​‍in his possession” such a weapon and there was no proof of ownership. The statute is in the disjunctive reading, “own or have in his possession.” Since the proof of possession was complete the defendant was not prejudiced by the wording of the information, and proof оf possession alone is sufficient to support the judgment. (People v. Gonzales, 72 Cal.App. 626 [237 P. 812].)

Finally, it is аrgued that defendant was subjected to an unconstitutional search and seizure when the ‍‌‌‌‌‌​‌‌‌‌​​‌​‌‌‌​​‌​‌​​​​​‌​​​​​​​‌‌​​‌​‌​​​​​​‍officers stopped him without warrant and took the gun from his possession. Reliance is made on Byars v. United States, 273 U.S. 28 [47 S.Ct. 248, 71 L.Ed. 520]. That еase is typical of those following the federal rule. But the authori *735 ties are in accord that the federal Constitution doеs not affect ‍‌‌‌‌‌​‌‌‌‌​​‌​‌‌‌​​‌​‌​​​​​‌​​​​​​​‌‌​​‌​‌​​​​​​‍the right of the State to use evidence seized in this manner. (People v. Mayen, 188 Cal. 237 [205 P. 435, 24 A.L.R. 1383] ; People v. Gonzales, 20 Cal.2d 165 [124 P.2d 44].)

We should note that counsel for appellant did not try the case in the superior court. He appears here on assignment of this court because appellant was unable to procure counsel. We express our appreciation of his voluntary efforts on behalf of appellant.

The judgment and the order denying a new trial are each affirmed.

Goodell, J., and Dooling, J., concurred.