People v. Gonzales

The defendant was charged by information with having violated the so-called Firearms Act of June 13, 1923 (Stats. 1923, p. 696), which reads as follows:

“Section 2. On or after the date upon which this act takes effect no unnaturalized foreign-born person shall own or have in his possession or under his custody or control any pistol, revolver or other firearm capable of being concealed upon said person. ...”

[1] A jury having found the defendant guilty as charged, a motion for new trial was denied, and this is an appeal from the judgment and order denying said motion. It is contended in appellant’s behalf that there was no evi

There is no contention that the appellant was not armed, as alleged, at the time of his arrest. The only evidence which in any way tended to show that he was an unnaturalized foreign-born person consisted of the testimony of various witnesses that appellant spoke the Mexican or Spanish language/’and that he could not speak English, and that of his daughter, twenty-two years of age, who said she was bom in Mexico, that she came to this country with her father and mother when she was about five years old, and had lived here with her father since that time. She also testified her father had never attended school in the United States, and that he was unable to read the English language; that his hair was black and his complexion the same as her own. However, there is not the slightest intimation by any witness that the appellant was not born in the United States; nor is there any fact upon which to base a presumption that he was foreign born.

The precise point raised in this case was decided by the supreme court recently in People v. Quarez, 196 Cal. 404 [ 238 Pac. 363 ], wherein it was said: “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. 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.’’

Authorities holding that the corpus delicti may be established by circumstantial evidence are cited in support of the

[2] The trial court refused to give an! instruction requested by appellant that “without independent evidence which satisfies the mind of the jury beyond a reasonable doubt that the defendant was at the time and place alleged in the information then and there a foreign-born, unnaturalized person, and had in his possession a firearm capable of being concealed upon the person at the time alleged in the information, the confession or admission of the defendant of his guilt would not be sufficient in law to warrant the jury in finding the defendant guilty.”

This instruction does not contain a. correct statement of the law, and was therefore properly refused. [3] The proof of the corpus delicti which must be produced before admissions or confessions of the defendant may be allowed to be put in evidence need not be sufficient to satisfy the minds of the jurors beyond a reasonable doubt of the corpus delicti, It is sufficient if the preliminary proof be of a substantial character tending to establish the corpus delicti. (People v. Ward, 145 Cal. 736 , [ 79 Pac. 448 ]; People v. Jenkins, 67 Cal. App. 631 [ 228 Pac. 405 ]; People v. Besold, 154 Cal. 363 [ 97 Pac. 871 ] ; People v. Ellena, 67 Cal. App. 683 [ 228 Pac. 389 ] ; People v. Quares, supra.) Such substantial evidence may be corroborated and strengthened by admissions and confessions of the defendant, and the proof beyond a reasonable doubt required by the law thus supplied. It may be added that the defendant was not prejudiced by the failure of the trial court to instruct upon the point suggested by the request.

There being no evidence offered, independent of an alleged admission of appellant, that he was foreign born, the

Finlayson, P. J., and Works, J., concurred.