In re Dare — 176 Cal. 83

Majority

p. 83

[Crim. No. 2106.

In Bank.

September 5, 1917.]

In the Matter of the Application of R. C. DARE for a Writ of Habeas Corpus.

Headnote

Criminal Law — Dangerous or Deadly Weapons—Constitutional Law—First Sentence or Section 5 op Act op 1917 Valid.—The first sentence of section 5 of the act of May 4, 1917 (Stats. 1917, p. 221), making it a felony to attempt to use unlawfully against another, or carry with intent so to use, any dangerous or deadly weapon, is a valid exercise of legislative power.

Id.—Possession op Weapon as Presumptive Evidence op Intent to Use—Question not Passed on—Separable Portions op Section. The question of the validity of the second sentence of section 5 of the same act, as to the effect of certain facts as presumptive evidence, not considered, hut even if invalid, its invalidity would not render the first provision void.

APPLICATION for a Writ of Habeas Corpus.

The facts are stated in the opinion of 'fhe court.

Wm. M. Abbott, Wm. M. Cannon, and James F. Sheehan, for Petitioner.

We are of the opinion that the first sentence of section-5 of the act of May i, 1917 (Stats. 1917, p. 221), providing that “any person who attempts to use, or who with intent to use the same unlawfully against another, carries or possesses,” etc., the weapon described, is a valid exercise of legislative power, and that none of the objections urged to the validity of the act is good in so far at least as this provision is concerned. This is the provision under which petitioner is charged by the indictment. The question of the invalidity of the second sentence of section 5, the sentence as to the effect of certain facts as presumptive evidence, cannot be considered on this application for a writ of habeas corpus. If this provision be invalid, its invalidity does not render void the provision first referred to.

The application for a writ of habeas corpus is denied.