People v. Morrison

This cause was transferred to this court after decision by the District Court of Appeal, Fourth District, Barnard, P. J., writing the opinion affirming the judgment.

The defendants were jointly accused by indictment of the crime of conspiring to violate the Alien Land Act of this state. (Stats. 1921, p. Ixxxiii; Stats. 1923, p. 1020; Stats. 1927, p. 880.) Section 13 of said initiative measure provides that the legislature may amend said measure in furtherance of its purpose. Section 9a, which appellants claim violates the due process clause of the federal Constitution and denies to them equal protection of the law, was adopted as an amendment of said initiative measure by the legislature of 1927. (Stats. 1927, p. 880.) It provides as follows:

“In any action or proceeding, civil or criminal, by the state of California, or the people thereof, under any of the provisions of this act, when the proof introduced by the state, or the people thereof, establishes the acquisition, possession, enjoyment, use, cultivation, occupation, or transferring of real property or any interest therein, or the having in whole or in part the beneficial use thereof by any defendant, or any of such fact, and the complaint, indictment or information alleges the alienage and ineligibility to United States citizenship of such defendant, the burden of proving citizenship or eligibility to citizenship shall thereupon devolve upon such defendant.”

Section 1983 of the Code of Civil Procedure, which was passed by the same legislature that amended the Alien Land Act in the respect above set forth, prescribes as a rule of evidence that whenever ineligibility to citizenship is alleged in a civil or criminal proceeding brought to enforce any law which denies any right, privilege or license to any person not a citizen or not eligible to become a citizen of .the United States, the burden rests upon the state or people to establish that such right, privilege or license was exercised by the person so alleged to have exercised the same, and upon such facts being so established the burden shall be upon the person claiming the right to exercise such right, privilege or license to show that at the time he exercised said right he was a citizen of the United States or eligible to

The indictment under which appellants were convicted alleged that they wilfully, unlawfully and feloniously combined and conspired by unlawful means and devices to bring about and accomplish the possession, enjoyment, use, cultivation and occupancy for agricultural purposes, by the defendant Doi and for his use and benefit, of certain described real property situate in the county of San Diego, which real property is alleged to be agricultural in character. It is alleged that the defendant Doi was and is an alien ineligible to citizenship under the laws of the United States, and that he is a citizen and subject of the empire of Japan and not authorized by law or treaty to acquire, enjoy, occupy or to have any beneficial interest in any real property in this state for agricultural purposes. It is also alleged that in furtherance of said conspiracy, and for the purpose of accomplishing and effecting the purposes and objects thereof, the defendant Morrison put the defendant Doi into possession of the agricultural land described, and permitted, aided and encouraged him to take possession thereof and to use, enjoy, cultivate and occupy the same, and that the defendant Doi took possession of said land, used, enjoyed, cultivated and occupied the same and raised and harvested crops thereon for his own use and benefit.

Trial by jury was waived and the action was tried before the court. The only evidence introduced consisted of the following stipulation: “It is stipulated that the defendant George Morrison is, and was at all times mentioned in the indictment, a native-born citizen of the United States of America, and lessee of the land described in the said amended indictment; that said land is agricultural land, and at all times mentioned in said amended indictment has been used exclusively for agricultural purposes; that on or about the 27th.day of August, 1931, the said George Morrison did knowingly and wilfully combine, confederate and agree with one II. Doi to bring about and accomplish the possession,

By the above stipulation it will be seen that the agricultural character of the lands and the execution of the lease and the entry into the possession thereof by defendant El. Doi (alleged to be a citizen and subject of the empire of Japan) and all facts necessary under the Alien Land Act to sustain a conviction except ineligibility are admitted. The defendants having failed to offer any evidence touching the qualification of Doi to exercise the rights of citizenship, or to meet the burden cast upon him, were adjudged guilty as charged, and released on probation. This appeal is from the judgment of conviction and order denying a new trial.

Appellants’ sole attack is made upon that portion of the decision in the ease of People v. Osaki, 209 Cal. 169 [ 286 Pac. 1025 , 1036], which sustains the power of the legislature to cast the burden upon aliens charged in the manner provided by the acts in question to 'prove their eligibility to own, possess or occupy agricultural land. While it was pointed out in that case that the evidence produced by the prosecution was sufficient of itself to show that the accused was an ineligible alien without the necessity of invoking the aid of the burden of proof provisions of said amendment to the Alien Land Act and said statutes, the validity of said burden of proof provisions was nevertheless brought into question and considered by us at great length. In fact, by far the greater portion of the decision was given to a consideration of the validity of said sections which cast the

“We are of the view that the better reason supports the conclusion that the burden in cases involving questions of naturalization and alienage has always been upon the defendant, who has intimate and peculiar knowledge of the fact. ’ ’

Again we said:

“It is not intended by what we have said to extend the rule of convenience or burden of proof to common-law crimes generally designated as malum in se nor to all crimes malum prohibitum. We go no further than to apply the rule to the particular situation in accordance with the express mandate of said amendments.”

Counsel for appellants recognize the relevancy and application of the authorities cited in the Osaki case to the instant case, and ask that we disapprove of the rule therein adopted and apply the doctrine announced in People v. Quarez, 196 Cal. 404 [ 238 Pae. 363 ]. That case leans heavily upon People v. Frey, 165 Cal. 140 [ 131 Pac. 127 ], which, as pointed out in the Osaki case, was adopted by a bare majority of the court. People v. Quarez and People v. Prey and many other cases of our own and other jurisdictions were exhaustively considered in the Osaki case, and counsel in the instant case has presented no important authorities or additional arguments which were not drawn to our attention in the O'saki ease. Both the Quarez and Prey cases recognize the rule ab inconvenienti, commonly known as the rulé of necessity or convenience, but seek to limit its application to the prosecution of persons charged with the violation of statutes regulating the practice of medicine and other professions and certain callings which provide that a license shall first be obtained before any person may engage in the practice of said professions or callings. The rule of convenience or necessity is of common-law origin and was a rule of evidence as early as 1816, a period long prior to the adoption of modern system requiring persons to obtain a license before they may engage in particular callings, which system has become quite universal as conducive to public health and safety during the present and latter part of the past century.

The great jurist makes reference to Lord Mansfield in Spiers v. Parker, and states that he finds him laying down the rule that in actions upon the game laws, and he saw no good reason why the rule should not be applied to informations as well as actions, the plaintiff must negative the exceptions in the enacting clause, though he throw the burden of proof on the other side. Continuing he said: “The same was said by Heath, J., in Jelfs v. Ballard; and such I believe has been tire prevailing opinion of the profession, and the practice. I am, therefore, of the opinion that this conviction, which specifies negatively in the information the several

Bayley, J., in a concurring opinion, said that no hardship was cast upon the defendant by the above rule because the defendant must be presumed to know his own qualification and to be able to prove it.

Iiolrod, J., concurring, said that it was a general rule that the affirmative is to be proved, and not the negative, of any fact which is stated, unless under peculiar circumstances, where the general rule does not apply. He holds that where it is shown that qualification to exercise a right or privilege is peculiarly within the knowledge of the person assuming to exercise the same, the burden is on such person to prove it.

It will be observed that the rule thus early recognized was not confined to medical cases, but to all of that class of cases in which the qualification of the person to exercise a privilege was the issue. The question before us is one in which qualification is the crux of the proposition. The books are replete with decisions which follow the rule early announced by Chief Justice Ellenborough and concurred in by his associates. Justice Story, in United States v. Hayward, 26 Fed. Cas. 240 (No. 15,336), recognized the rule at length in a case wherein the question arose as to the necessity of negativing the neutrality of a vessel in which goods were brought into this country. In his consideration of negative allegations he holds the reasonable rule is that the burden of proof shall rest upon the party who holds the affirmative; and especially where the facts are peculiarly within his privity and cognizance. In Casey v. United States, 276 U. S. 413 [ 48 Sup. Ct. 373 , 72 L. Ed. 632 ], involving the illegal possession of morphine, Mr. Justice Holmes said: “It is consistent with all the constitutional protections of accused men to throw on them the burden of proving facts peculiarly within their knowledge and hidden from discovery by the government.” (1 Greenleaf on Evidence, see. 79; 4 Wig-more on Evidence, sec. ,2486; Yee Hem v. United States, 268 U. S. 178 [ 45 Sup. Ct. 470 , 69 L. Ed. 904 ]; Mobile etc. R. R. v. Turnipseed, 219 U. S. 35 [ 31 Sup. Ct. 136 , 55 L. Ed. 78 , Ann. Cas. 1912A, 463, 32 L. R. A. (N. S.) 226 ]; State v. Miller, 182 Mo. 370 [ 81 S. W. 867 ]; State v. Abbey,

People v. Velasquez, 70 Cal. App. 362 [ 233 Pac. 359 ], Curtis, J., writing the opinion, held contrary to Peopl e v. Quarez, supra, and we are of the view that the treatment of and the application of the' rule of convenience made by the District Court of Appeal is sound in reason and is sustained by the greater weight of authority. It held that the accused had absolute knowledge as to whether he was a naturalized citizen, and the burden was on him to offer his proof. If the People in this case should be required to' prove the negative the enforcement of the law would be defeated by imposing upon the People the impossible task of making a thorough and painstaking search of the entire United States and its dependencies in probably a vain effort to establish the nonexistence of a naturalization record. This case was published about the time that the Quarez decision was rendered. The first legislature that convened after the Quarez decision became the law, in an effort to supply the ground upon which a contrary decision might rest, adopted the amendment and statutes now before us, casting the burden of proof upon persons whose right to exercise certain privileges granted only to citizens may be challenged upon the grounds of alienage, as in said statutes provided.

That it is competent for the state in the exercise of its sovereign power to reserve the ownership, occupancy and control of its agricultural lands for the benefit of its citizens or those eligible to become such, and that it may as a means of determining such eligibility when it is drawn into question by an appropriate proceeding cast upon the person claiming or assuming the right to own, occupy or control said land, the burden of proving his eligibility, are propo

Medical -license cases and liquor cases furnish a fertile field for the application of the rule of convenience or necessity. But it will be found upon an examination of the eases that the rule has been applied to cases of bigamy, relationships, the right to take game, possession of opium, questions of neutrality, and in fact generally to all cases of qualification where the right to enjoy a privilege is peculiarly within the knowledge of the person exercising such privilege, and' not within the knowledge of the state which challenges the right by negative allegations. No case can easily be imagined which so aptly justifies the application of •the rule of necessity and convenience as do the facts and circumstances which constitute the básis of the instant case. It would be beyond reason to require the state to search the records of every city, parish and county of the' nation in proof of a negative when the question of qualification is peculiarly within the knowledge of the person who asserts the right to enjoy a privilege which attaches to citizenship alone.

We have given no special consideration to section 9b of said amendment to the Alien Land Act, for the dual reason that it is not material to the issue involved in the instant ease, and its effect was fully considered in the Osaki case. That section provides that when the proof shows the defendant to be a member of a race ineligible to citizenship under the naturalization laws of the United States, the burden of proving citizenship or eligibility as a defense shall thereupon devolve upon such defendant. It is specially provided by said section that it shall not modify, limit or affect in any manner the provisions of said section 9a. Said section 9b wras doubtless adopted as a measure offering some assistance in the way of making the act’ effective if section 9a should for any reason fail.

In the prosecution of cases of this class the burden of proof is upon the prosecution to affirmatively establish every element constituting the offense save the want of eligibility on the part of the accused. There is nothing unreasonable or unjust in the rule which requires the accused to prove his eligibility. The legislature has determined that the

The judgment is affirmed.

Tyler, J., pro tern., Langdon, J., and Waste, C. J., concurred.

I dissent. The crime charged against the- defendants consists of two elements, (1) thealienage and ineligibility to citizenship of H. Doi, and (2) the possession of agricultural lands by said defendant. The second of these two elements was proven, but there was no evidence whatever in support of the first element—alienage and ineligibility to citizenship of H. Doi. Under section 9a of the Alien Land Act as the alienage and ineligibility to citizenship was alleged in the indictment the burden of proving citizenship or eligibility to citizenship was cast upon the defendants. The conviction of the defendants must stand, therefore, if this section of the Alien Land Act is a valid exercise of legislative power. The majority opinion sustains the validity of the law in question. In the first place it is apparent that there is a marked distinction between the instant case and the case of People v. Osaki, 209 Cal. 169 [ 286 Pac. 1025 ]. In that case there was direct proof, and this fact was emphasized throughout the opinion, not only that the defendant Osaki was in the possession of agricultural lands, but also that he was a member of the Japanese race. Under section 9b of the Alien Land Act proof of these facts creates “a prima facie presutirption of ineligibility to citizenship”. The constitutionality of section 9b of said act is not questioned. Under that section it is necessary to prove two facts: First, that the defendant is in possession of agricultural lands of this state, and second, that he is a member of a race ineligible to citizenship. Under section 9 a, however, only one of these facts is required to be proven, and that is that the defendant is in possession of agrieul

In O’Neill v. United States, 19 Fed. (2d) 322, the defendant was accused with the violation of the Harrison Anti-Narcotic Act. In that case the defendant was convicted of the offense of selling drugs without paying the special tax provided by the statute. The prosecution relied upon the prima facie presumption which was claimed to arise under the statute from the possession of unstamped drugs. In discussing .this presumption, the court said: “The general principle is well recognized that even in criminal prosecutions, congress or a state legislature may with certain limitations enact that when certain facts have been proved they shall be prima facie evidence of the existence of the main fact in question. (12 C. J., p. 823, sec. 285.) The limitations are these: There must be some rational connection between the fact proved and the ultimate fact presumed; the inference of the existence of the ultimate fact from proof of the other facts must not be so unreasonable or unnatural as to be a purely arbitrary mandate ...” Further on in the opinion, the court also said: “In our opinion, congress could not reasonably enact that possession of unstamped narcotic drugs should be prima facie evidence of a violation of the first penal provision of section 1.”

In the ease of Simpkins v. State, 35 Okl. Cr. 143 [ 249 Pac. 168 ], the court had under consideration a statute of Oklahoma providing that if a person driving an automobile had on or about his person any intoxicating liquors that fact would constitute prima facie evidence of such person fiaving driven while intoxicated. After discussing the constitutional limitations as to legislation of that character the

To the same effect are two recent decisions of the Supreme Court of the United States: Manley v. Georgia, 279 U. S. 1 [ 49 Sup. Ct. 215 , 73 L. Ed. 575 ], where the court held unconstitutional a statute of Georgia which allowed a conviction of fraud upon mere proof of insolvency, on the ground that the statutory presumption was not rational and that the connection between the fact proved and that presumed was not rational; and Western & Atlantic Railroad v. Henderson, 279 U. S. 639 [ 49 Sup. Ct. 445 , 73 L. Ed. 884 ], holding unconstitutional a statute providing for a shifting of the burden of proof on the issue of negligence upon the mere proof of a collision upon the ground that the statute cannot provide for the shifting of the burden of proof on the basis of a presumption which is arbitrary and irrational.

Many other authorities to the same effect might be cited but we deem the above sufficient for our present purpose. These cases uniformly hold that in order to sustain such a legislative presumption as that created by section 9a of said act, it is absolutely necessary that there be some rational or reasonable connection between the fact proven and the fact presumed. In the present case there is no semblance of such a connection. The mere fact that a defendant is brought into court and proof is made that he is using or is in possession of real property susceptible of producing agricultural products is made the basis of a presumption

Shenk, J., and Preston, J., concurred.