Opinion
Hearing Granted by Supreme Court July 18, 1929
Appeal from Superior Court, Los Angeles County; Charles S. Fricke, Judge.
Joe Bruno was convicted of possessing a firearm of forbidden length, being at the time an unnaturalized foreign-born person, and he appeals. Reversed.
COUNSEL
S.S. Hahn and Dan J. Heyfron, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., John L. Flynn, Deputy Atty. Gen., Buron Fitts, Dist. Atty., and Tracy Chatfield Becker, Deputy Dist. Atty., both of Los Angeles, for the People.
OPINION
CRAIG, J.
The defendant was charged with the violation of section 2, Statutes of 1923 (St.1923, p. 696), in having in his possession and under his control a firearm having a barrel less than 12 inches in length, and in being at the time an unnaturalized foreign-born person. He was convicted, and appeals from an order denying his motion for new trial, and from the judgment.
The principal ground of appeal is an asserted insufficiency of the evidence to establish the corpus delicti and to sustain the verdict. However, in this connection certain constitutional questions are raised.
In People v. Quarez, 196 Cal. 404, 238 P. 363, the Supreme Court of this state held that in the offense here charged the corpus delicti consists of two distinct elements, to wit, first, the possession of a certain type of weapon, and, second, the foreign nativity and nonnaturalization of the accused. Section 1983 of the Code of Civil Procedure, as added by St.1927, p. 434, does not alter the law in this regard. It was also logically further held in the case above mentioned that extrajudicial statements of a defendant are not sufficient in themselves to establish the second element of the corpus delicti, but that other and independent evidence is necessary for that purpose.
The people argue that by the provisions of section 1983 of the Code of Civil Procedure, enacted since the decision in the Quarez Case, a presumption has been created which may be employed to supply the independent evidence required, and that in this case it was so supplied, and that this presumption is sufficient. Appellant insists in this behalf that section 1983 is unconstitutional, as in conflict with several constitutional provisions. The section itself reads, in part, as follows: "Whenever in any action or proceeding, civil or criminal, brought by, or in the name of, the State or the people thereof, *** to enforce any law which denies any right, privilege or license to any person not a citizen of the United States, or not eligible to become such citizen, *** and whenever in any action or proceeding in which the State *** is or becomes a party, it is alleged in the pleading therein filed on behalf of the State, *** that such right, privilege or license has been exercised by a person not a citizen of the United States, or not eligible to become such citizen, *** the burden shall be upon the party for or on whose behalf such pleading was filed to establish the fact that such right, privilege or license was exercised by the person alleged to have exercised the same, and upon such fact being so established the burden shall be upon such persons, or upon any person, firm or corporation claiming under or through the exercise of such right, privilege or license, to establish the fact that the person alleged to have exercised such right, privilege or license was, at the time of so exercising the same, a citizen of the United States, or eligible to become such citizen, *** and was at said time legally entitled to exercise such right, privilege or license."
The only constitutional provision relied upon by appellant which appears to warrant attention is section 13 of article 1 of the Constitution of California, in which it is guaranteed that the defendant cannot be compelled in any criminal case to be a witness against himself. Undoubtedly any law which would have the effect of forcing a defendant to produce evidence against himself would be unconstitutional.
Under the rule, ab inconvenieti, it has been held that negative allegations regarding matters peculiarly within the knowledge of the defendant need not be proved; but this exception to the general rule has been limited in this state to that particular class of cases where the prosecution is required to prove the nonexistence of a license. People v. Quarez, supra; People v. Frey, 165 Cal. 140, 131 P. 127. In these cases it was held that the precise element involved in the charge against the appellant here, the nativity of the defendant, was not of such a nature as to come within the rule ab inconvenienti. The Legislature cannot, by merely declaring it to be so, change the inherent nature of the issue and thus bring proof of the nativity within the class of matters excepted from the general rule as being within the particular knowledge of the defendant, if in fact it is not of that character. Otherwise, it would be competent for the Legislature to pass a law providing that in a prosecution for murder, upon proof of the death of the person alleged to have been murdered, the defendant must show that such death did not come about through unlawful means, and that in the absence of such proof this element of the corpus delicti should be deemed confessed, the act declaring this provision to be within the exceptional rule ab inconvenienti. Obviously the mere fiat of the Legislature could not thus metamorphose the issue as to the nature of the agency that produced death.
Accepting then, the decision of our Supreme Court, as announced in the Quarez Case, that this issue of nativity is not one whose proof is especially within the knowledge of the defendant, we must conclude that it remains not within the exception ab inconvenienti.
It is argued that the only result of the provision is to create a presumption of the foreign nativity of the defendant from proof that he had a firearm of the forbidden length in his possession. But it is clear that in this case far greater and more serious consequences than this would result. The presumption would be but an entering wedge, opening the door to damaging admissions otherwise barred, and which, coupled with the presumption attempted to be created by the statute, might be sufficient to establish the element of nonnativity and thus complete the case against the defendant. We have here an effort to accomplish indirectly that which undoubtedly could not be done directly, to conjure up through a process of legislative necromancy a semblance of evidence, and to require the courts to treat this counterfeit as real evidence. There is no rational connection between the fact that a person has in his possession a firearm of a certain type or size and that individual’s place of birth. If evidence of crime may be thus fabricated in the form of a presumption without any foundation in fact, the most serious felony might be presumed from entirely innocent acts and circumstances. There must be a reasonable connection between the fact and the presumption which the law directs to be drawn therefrom. People v. Osaki et al. (Cal.App.) 278 P. 252.
Holding, as we do, that the provision attempting to create a presumption of foreign birth from proof of possession of a firearm of less barrel length than 12 inches is ineffective, it follows that the admission in evidence of the statements of the defendant to the officer concerning his place of birth and nonnaturalization was error, since such admissions cannot be received without at least prima facie proof of the corpus delicti. This leaves the people’s case entirely unsupported by evidence.
We find no other point which warrants consideration.
The judgment is reversed.
I concur: IRA F. THOMPSON, J.
Owing to the illness of WORKS, P.J., he does not participate in this opinion.