People v. Quarez

An information, filed by the district attorney of Sacramento County, charged the defendant herein with having, on the twelfth day of July, 1924, in his possession and under his custody and control, in the city of Sacramento, a 32.20 Colt’s revolver, less than twelve' inches in length, and capable of being concealed on his person, and being, at the time, a foreign-born person and not a naturalized citizen of the United States. He was tried and convicted of the offense charged, the verdict reading: “We, the Jury in the above-entitled cause, find the Defendant D. Quarez true name D. Juarez Guilty of the crime of carrying a concealed weapon, and being at the time an unnaturalized foreigner, as charged in the Information.” In due course a motion for a new trial was interposed by the defendant and denied. The defendant appeals from the order denying his said motion for a new trial and from the judgment of conviction.

Section 2 of the act under which appellant was prosecuted (Stats. 1923, c. 339, p. 696) reads as follows:

“Sec. 2. On and after" the date upon which this act takes effect, no unnaturalized foreign-born person and no person who has been convicted of a felony against the person or property of another, or against the government of the United States or of the State of California or. of any political subdivision thereof shall own or have in his possession or under his custody or control any pistol, revolver or other firearm capable of being concealed upon the person. The terms ‘pistol,’ ‘revolver,’ and ‘firearms capable of being concealed upon the person’ as used in this act shall be construed to apply to and include all firearms having a barrel less than twelve inches in length. Any person who shall violate the provisions of this section shall be guilty of a felony and upon conviction thereof shall be punishable by imprisonment in a state prison for not less than one year nor for more than five years.

There is no dispute that, on the evening of July 12, 1924, the arresting officers while cruising about' the city of Sacra

The principal contention on appeal is that this latter evidence was inadmissible and therefore the elements of foreign birth and non-naturalization were not proved. We quote from appellant’s brief: “The principal question involved in this case centers on the admissibility of these very statements of the police officers relied'upon by the prosecution as establishing the fact of foreign birth, namely, that appellant had admitted to them he was born in Mexico. To assume that these statements proved this fact is of course to assume the fact in issue. . .

“In the case at bar there is absolutely no evidence except appellant’s extrajudicial statements which in any way tends to show foreign birth.”

It is insisted by appellant that foreign birth is an essential part of the corpus delicti of the offense defined by the statute and therefore the extrajudicial statements of the appellant are not admissible as proof of such element of the crime. In other words, “that the fact of his being a foreign born citizen, if established, is a fact which must coexist with the act of possession of a weapon before any unlawful act is shown to have been committed and that it therefore constitutes a part of the corpus delicti; that therefore the declarations of the appellant alone were not sufficient to establish the fact of foreign birth and there being no other testimony on that subject the evidence is insufficient to support the verdict.”

The People cite many authorities to the effect that a slight amount of proof is only necessary to satisfy the law when proving a negative, in a case where a fact is peculiarly within the knowledge of the other party; and, other authorities, to the effect that having proven by competent evidence the foreign birth of the appellant, the allegation of the information that he had never been naturalized must be taken as true in the absence of proof to the contrary.

[1] It is readily apparent that section 2, quoted above, prohibits and makes punishable the carrying of concealed weapons under circumstances described therein. A reading of section 2 of the act indicates, so far as it is applicable to the instant ease, that the legislature prescribed two elements for conviction thereunder, namely: (1) the possession of a concealed weapon of the type described therein, (2) by a foreign-born and unnaturalized person. That is, if the proof of the prosecution, under this section, were to stop with a showing that the person charged had carried, possessed or had under his custody or control a weapon of the prohibited type no offense would be proven. [2] In addition to this proof the prosecution has the burden of establishing that the

The corpus delicti of the offense defined in section 2 consists, as we have shown, of two elements—the second being the foreign nativity and non-naturalization of the appellant. [3] The rule is well settled and the authorities numerous in this state that the extrajudicial statements, admissions, or confession of a defendant cannot be used to establish any necessary element of the corpus delicti of the crime charged. The corpus delicti must be established by independent evidence before the extrajudicial statements, admissions, or confession of a defendant are admissible. (People v. Jones, 31 Cal. 565 ; People v. Simonsen, 107 Cal. 345 [ 40 Pac. 440 ] ; People v. Johnson, 47 Cal. App. Dec. 392 [ 238 Pac. 814 ].) We are not to be understood as holding that if the evidence of the statements, admissions, or confession of a defendant had been received in advance of a full measure of proof of the corpus delicti, which was later supplied, the mere inversion of the order of proof would be prejudicial to the defendant. (People v. Besold, 154 Cal. 363 , 368 [ 97 Pac. 871 ].)

[4] Nor are we unmindful of the rule stated by respondent and commonly known as the “rule of convenience.” It is thus stated in 22 Corpus Juris, at page 81, section 24: “In the administration of justice it is often wise to place the burden of producing evidence on the party best able to sustain it, and ambiguity, concealment, or evasion react with peculiar force on a pleader who asserts a fact and fails to produce the evidence, which if his assertion were true, would be in his possession. Hence it is very generally held that where the party who has not the general burden of proof possesses positive and complete knowledge concerning the existence of facts which the party having that burden is called upon to negative, or where for any reason the evidence to prove a fact is chiefly, if not entirely, within his control, the burden rests on him to produce the evidence,

Again, in 16 Corpus Juris, page 530, section 998, it is said: “Where the subject matter of a negative averment in the indictment, or a fact relied upon by defendant as a justification or excuse, relates to him personally or otherwise lies peculiarly within his knowledge, the general rule is that the burden of proof as to such averment or fact is on him. ’ ’

The case of People v. Boo Doo Hong, 122 Cal. 606 [ 55 Pac. 402 ], is cited in each of these sections, and also by respondent in support of its contention. An examination of that case discloses that the defendant therein was charged by information with the crime of wilfully and unlawfully practicing medicine without having first procured a certificate to so practice, as required by law. The trial court in its instructions, in effect, told the jury that the burden was on the defendant to prove that he had a certificate to practice and that in the absence of such proof it must be taken as true he had not procured one. The court declared: “It is contended for appellant that the said instruction was erroneous and misleading, and that the verdict was not justified by the evidence, because in a criminal action the defendant is presumed to be innocent until he is proved guilty beyond a reasonable doubt, and this presumption continues through the entire trial, and the burden is upon the people to establish his guilt by proving every material allegation of the information; and that as the information charged that defendant had practiced medicine without having a certificate to do so, it devolved upon the people to prove that fact, and having entirely failed to offer any such proof he ought not to have been convicted, and his motion for new trial should have been granted.

“The general rule is undoubtedly as above stated, but there is a well-recognized exception to the rule, where there is a negative averment of a fact peculiarly within the knowledge of the defendant.

“Mr. Greenleaf, in his work on Evidence, volume 1, section 79, under the heading ‘Negative Allegations,’ says: ‘But when the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the aver

“In 1 Jones’ Law of Evidence, section 179, under the heading ‘Burden as to particular facts lying peculiarly within knowledge of a party,’ it is said: ‘This is often illustrated in prosecutions for selling liquors or doing other acts without the license required by law. By a few authorities the rule is prescribed that in such cases the prosecution must offer some slight proof of the fact that no license has been granted, for example, by producing the book in which licenses are recorded; and, if the book fails to show that a license has been granted, the burden is shifted upon the defendant to prove the facts claimed by him; but the greater number of authorities hold that where a license would be a complete defense the burden is upon the defendant to prove the fact so, clearly within his own knowledge.’ (Citing eases.)

“We think the rule upon this subject generally recognized and followed the correct one, and therefore conclude that the court did not err in giving the instruction complained of, and that the verdict was justified by the evidence.”

There is no doubt that the above case enunciates the correct principle and that it has been consistently followed in this state in those cases involving the unlawful practice of medicine without a license. (People v. Fortch, 13 Cal. App. 770 , 775 [ 110 Pac. 823 ] ; People v. Wah Hing, 47 Cal. App. 327 , 331 [ 190 Pac. 643 ] ; People v. Goscinsky, 52 Cal. App. 62 , 64 [ 198 Pac. 40 ]; People v. Saunders, 61 Cal. App. 341 , 345 [ 215 Pac. 120 ].) It has also been extended to a case where the defendant was charged by information with the offense of carrying a concealed weapon upon his person in violation of section 3 of the act of 1917 (Stats. 1917, p. 221). This section, which is really the counterpart of section 5 of the act of 1923, made it a misdemeanor for anyone

[5] But this exception to the general rule has, in this state, been confined to that particular line of cases where it becomes necessary, in order to constitute the offense charged, for the prosecution to prove the nonexistence of a license required by law. The burden of the issue is put on the defendant in such cases because it is easy for him to meet it. But the rule should not be applied so as to make less imperative, in the enforcement of the law, the duty of the prosecution to establish the charge. In other words, any deviation from the general rule should be strictly confined to the principle of “ab inconvenienti.” That this exception to the general rule is not of universal application in this state to criminal cases is recognized in People v. Frey, 165 Cal. 140 , 145 [ 131 Pac. 127 ]. In that ease the defendant was charged with a violation of section 476a of the Penal Code in drawing and issuing a draft upon a bank without having sufficient funds therein to meet it; the only evidence of the insufficiency of the funds was the extrajudicial confession of the defendant. In holding that the corpus delicti was not established the court declared: “We are fully mindful of the importance of the argument ab inconvenienti, but since the legislature has seen fit to make

“Nor does this ease come within the rule that negative allegations regarding matters peculiarly within the knowledge of the defendant need not be proven. That is a special rule applicable to such prosecutions as those for practicing some profession or following some calling without the license provided therefor by law.” (Italics added.)

In People v. Whiteman, 114 Cal. 338 , 344 [ 46 Pac. 99 , 101], which involved an alleged forgery, the court declared: “Suppose that he had admitted that he drew the Dixon check, and claimed that he had authority from Dixon to draw it, would this admission have put the burden upon him to show such authority .

“It would be a new departure in criminal law. It arises from a difficulty which is inherent in our system. We have inherited the idea, which we carefully place in all our constitutions, that an accused person must be confronted by his witnesses in court. State process cannot cross state borders, and hence justice is sometimes defeated. The courts have not created the difficulty, and cannot provide a remedy by depriving a defendant of the presumption of innocence and putting the burden upon him.”

Epitomized, the legal situation is this: Appellant was convicted under section 2 of the act of 1923. That section, so far as is applicable to this case, contains two essential elements necessary to be proved before the corpus delicti of the offense is established, namely: (1) the fact that appellant owned or had in his possession or under his custody or control a weapon of the prohibited type, and (2) the fact

Lennon, J., Richards, J., Shenk, J., Waste, J., Seawell, J., and Myers, C. J., concurred.

Rehearing denied.