Opinion
Rehearing Denied June 15, 1929
Hearing Granted by Supreme Court June 27, 1929
Appeal from Superior Court, Sutter County; K.S. Mahon, Judge.
K. Osaki and another were convicted of violating the provisions of the Alien Land Law, and they appeal. Reversed and remanded.
COUNSEL
Lloyd E. Hewitt, of Yuba City, W.P. Rich, of Marysville, and Brobeck, Phleger & Harrison, of San Francisco, for appellants.
U.S. Webb, Atty. Gen., and J. Chas. Jones, Deputy Atty. Gen., for the People.
OPINION
PLUMMER, J.
The defendants were convicted upon an indictment charging them in six separate counts of violating the provisions of the Alien Land Law (Stats.1921, p. lxxxiii). Convictions were had upon five of the six counts set out in the indictment. Upon this appeal from the judgment in said cause the appellants challenge the constitutionality of sections 9a and 9b of the Alien Land Law as amended by an act of the Legislature, approved May 16, 1927, Statutes of 1927, p. 881, and also section 1983 of the Code of Civil Procedure as added in 1927 (St.1927, p. 434).
Section 9a of the Alien Land Law, as amended, places the burden of proving citizenship upon a defendant when the information alleges the alienage and ineligibility to citizenship of such defendant, and the proof introduced establishes the acquisition, possession, enjoyment, use, cultivation, etc., of real estate. Section 9b of the act, in addition to placing the burden of proving citizenship upon such a defendant, provides that, when the information, complaint, or indictment alleges alienage and ineligibility to citizenship, and there is proof of the acquisition, possession, use, etc., of real estate, and further proof that the defendant is a member of a race ineligible to citizenship under the naturalization laws of the United States, such proof shall create a prima facie presumption of ineligibility to citizenship of such defendant. Section 1983 of the Code of Civil Procedure, as added in 1927, so far as this case is concerned, is substantially the same as section 9b of the Alien Land Law as amended in 1927. Based upon the provisions of section 9a of the Alien Land Law above referred to, the trial court gave to the jury, at the request of the plaintiff, instructions numbered 10 and 17. These instructions are as follows:
"Plaintiff’s Instruction No. 10.
"It is alleged in the indictment that the defendant Osaki is an alien ineligible to citizenship and that pursuant to the conspiracy alleged in the indictment did acquire, possess, enjoy, use, cultivate and occupy real property described therein and an interest therein, in a manner and to an extent otherwise and for purposes otherwise than prescribed by any treaty existing between the nation and country of which said alien is a citizen and subject.
"I therefore instruct you that if and when the people have established that the defendants did conspire to so acquire, possess, enjoy, use, cultivate and occupy such real property, then the burden is upon the defendants to establish the fact that the defendant Osaki was a citizen of the United States, or a person eligible to become a citizen of the United States."
"Plaintiff’s Instruction No. 17.
"The burden of proof is upon the prosecution. In this case, however, under the pleadings, the prosecution is not required to prove that the defendant Osaki is eligible to citizenship in the United States. But on the contrary that burden is upon the defendants. And if the defendants have failed to show that he is a citizen or is eligible to become a citizen, then you will find that he is not a citizen and is ineligible to become one."
The appellants insist that the sections of the Alien Land Law upon which the foregoing instructions were based are violative of sections 10, 13, and 16 of article 1 of the Constitution of the state of California, and also violative of the Fourteenth Amendment of the Constitution of the United States.
In every prosecution of the kind with which we are dealing, there are three elements to be established; i.e., first, the defendant must be an alien; second, the defendant must be an alien ineligible to citizenship under the naturalization laws of the United States; and, third, the acquisition and use of the character of real estate prohibited by the Alien Land Law. That alienage is an essential element or ingredient of the offense, such as is charged in the indictment before us, is established beyond controversy by the decision of the Supreme Court in the case of People v. Quarez, 196 Cal. 404, 238 P. 363. The mere occupancy of land by a Japanese, as shown by the reasoning in the Quarez Case, constitutes no offense. In that case the charge was that of carrying a concealed weapon by an alien, where the court held, as we have said, the fact of alienage was an essential element of the offense, and, unless established, no crime was proven. Or, to use the language quoted in the Quarez Case: "It follows that it is as necessary to the proof of a violation of the statute that the defendant be shown to belong to the proscribed class as it is that he committed the forbidden act. This fact being one essential element of the crime, it constitutes a part of the corpus delicti and must be proved as such. The corpus delicti consists of the elements of the crime." And, as further said in the same opinion, the rule of convenience which excuses the prosecution from proving a negative does not apply when the fact constituting the negative is a part of the corpus delicti. Or, to use the language found in 8 R.C.L. 172: "As a general rule, when the offense is grounded on a negative, or when that negative is an essential element of the crime, the burden is on the state to prove it, for in criminal cases the law requires that the state shall prove all the essential facts entering into the description of the crime," etc. We think it unnecessary to cite authorities to support the maxim "that the burden of proof never shifts from the prosecution to prove all the facts necessary to establish the crime charged," and, where the necessary facts are not proven, there can be no burden to shift. The sections of the Alien Land Law under consideration bear no resemblance to the cases founded upon exceptions in laws regulating the sale of intoxicating liquors and other like injurious substances. Such laws make it a crime for any one to sell the prohibited substance, and then contain an exception clause permitting one to sell under a prescribed license. In such instances the corpus delicti is established when the proof of sale is introduced. Here, proof of the leasing of land by a Japanese in and of itself establishes no offense whatever.
We have been cited to no authorities supporting the principle sought to be injected into the Alien Land Law by the two sections under consideration, that a charge in an indictment or information takes the place of proof. That such an act is an attempt to deny to a certain class of persons the due process of law accorded by section 13 of article 1 of the State Constitution and the Fourteenth Amendment to the Constitution of the United States seems to us incontrovertible. Section 1981 of the Code of Civil Procedure places the burden of proof upon the party holding the affirmative of an issue, and upon the party who would be defeated, if no evidence were given on either side. Such is the rule as to all other cases. To deny the application of that principle of law in cases such as the one at bar would be to violate the constitutional guaranties as to due process and equal protection.
As to section 9b of the Alien Land Law as enacted in 1927, little need be said in addition to what we have already set forth. The law is well settled that there must be a rational connection between the fact proven and the fact presumed, and, unless such is the case, that portion of section 9b relative to establishing the presumption of ineligibility to citizenship is void. That there is no such rational connection between proof that one of the defendants in this case is ineligible to citizenship by reason of being a member of the Japanese race is shown by the fact that his codefendant, K. Yoshioka, also a Japanese, is an American citizen. We need only to call attention to what is common knowledge to everyone familiar with everyday facts, that there are hundreds of Japanese in the United States who are now citizens, and this by reason of the constitutional provision that all persons born, etc., in the United States, and subject to the jurisdiction thereof, are citizens. While the respective parties have cited a considerable number of authorities touching upon the questions here considered, we think what we have stated is so obvious that citation of other cases is unnecessary. Attention, however, may be called to the fact that in Cockrill v. People of California, 268 U.S. 258, 45 S.Ct. 490, 69 L.Ed. 944; People v. Cockrill, 62 Cal.App. 22, 216 P. 78, chiefly relied upon by the respondent to sustain section 9b, supra, alienage was not involved. The Cockrill Case turned upon the presumption that one who pays the purchase price for land without anything further appearing may reasonably be held to have a beneficial interest therein. This presumption, as a principle of law, has been adhered to almost from time immemorial. It is founded upon the experience of mankind that ordinarily one does not pay the purchase price for a tract of land, unless he is intending to acquire an interest therein. We may further add that none of the cases cited depart from the rule above stated that there must be a reasonable and rational connection between the fact proved and the fact presumed. There can be no arbitrary application of the principle here involved.
Appellants’ brief calls our attention to the fact that there are now over 20,000 Japanese born in the United States, and within the confines of this country. All of these people are spoken of as "Japanese," which again demonstrates that to presume from such a statement that they are ineligible to citizenship is an arbitrary conclusion, and directly contrary to the facts.
Appellants call our attention to the fact that not one word of testimony was introduced by the prosecution to prove the nationality of Osaki, or to prove that he was ineligible to citizenship. We have searched the record from cover to cover, and fail to find any testimony in relation thereto. All that does appear is contained in three isolated references brought out on cross-examination, which do not refer to nationality or citizenship. We set them forth: "Q. You knew, of course, he was a Japanese when you did so? A. Yes, I knew he was a Japanese. Q. (Cross-examination of another witness): Is Osaki the only Japanese you saw there at that time? A. No, I saw a number of Japanese there, but he is the only one I talked to." And in the cross-examination of another witness, this question and answer appears: "Q. Did you see any other Japanese except Osaki there at the time? A. No." Upon these questions and answers the respondent rests its case so far as the proof is concerned, in supplying the necessary testimony to prove the corpus delicti of the crime charged. Appellants reply that the common expression of "Japanese" proves absolutely nothing as to whether the person referred to is or is not a citizen of the United States or a person eligible to citizenship. And in this particular we are reminded that without exception the average person will speak of the foreign-born and the native-born Japanese in the same manner. They are all denominated "Japanese"; and for a witness to state that he talked to a "Japanese" means absolutely nothing more than that whether foreign-born or native-born, he calls him a "Japanese."
We do not need to cite the cases referred to by appellants wherein native-born Chinese and Japanese are spoken of as "Chinese and Japanese" by our own courts and, as well, by the courts of the United States. It is such a common expression that the statement of the fact is all that is necessary to carry conviction of its truth.
Respondent further relies upon instruction No. 21 given by the trial court to the jury at the request of appellants, and argues that, in the request for such instruction, the appellants admitted all that was necessary to supply the lack of proof as to the corpus delicti in the first instance. If the respondent’s construction is correct as to instruction No. 21, then the trial court directly and explicitly violated section 19 of article 6 of the Constitution, which forbids a trial court from charging a jury as to a matter of fact, much less assuming and stating as a fact something which nowhere appears in the testimony. The instruction referred to is as follows:
"Before you can find either of the defendants in this action guilty of a conspiracy to violate the Alien Land Law, under any of the counts named in the indictment, it must appear from the evidence beyond a reasonable doubt, and to a moral certainty, that some agreement was made or some understanding had by and between the defendant Yoshioka, who is admitted to be an American citizen, and the defendant Osaki, who is an alien ineligible to citizenship, under and by which they conspired together to secure leases of agricultural or farming land and property, or an interest therein, to the end that the defendant Osaki might acquire, control, possess and enjoy some interest in the agricultural lands mentioned in the indictment and unless you find from the evidence that such an agreement was made or such an understanding existed between them, you should find each of the defendants not guilty."
While upon first reading it would seem that the trial court did apparently assume, as a fact, and instruct the jury as a fact, that Osaki was an alien ineligible to citizenship, we think, upon further consideration, that the court did not intend to do so, and that the purpose of the request was not to induce the court so to do. The purpose of the instruction and the intent which we gather from it was to inform the jury that they must be satisfied from the evidence, beyond a reasonable doubt and to a moral certainty, that there was some agreement between Yoshioka and Osaki, an alien ineligible to citizenship, to secure leases, etc.; that it was necessary to be satisfied beyond a reasonable doubt that Osaki was an alien ineligible to citizenship; and that the agreement between them was for the purpose of securing the beneficial use of land to Osaki as an alien ineligible to citizenship. That this construction is correct is borne out by other instructions given by the trial court to the jury. As an illustration, we may cite the concluding words of instruction No. 12. After reciting certain facts necessary to constitute the offense charged, the court said: "Then they are guilty of a conspiracy to violate the Alien Land Law as charged in each and all the counts of the indictment in regard to which you make such finding, provided you find that Osaki is not a citizen."
Finally, respondent insists that, under section 4 ½ of article 6 of the Constitution, the order and judgment of the trial court should be upheld. No case has been called to our attention where this provision of the Constitution has been held to apply where a defendant has been denied a fundamental right. On the contrary, it has been explicitly held that section 4 ½ of article 6 of the Constitution does not apply where a defendant has been denied a fundamental right. People v. Carmichael, 198 Cal. 543, 246 P. 62; People v. Wismer, 58 Cal.App. 679, 209 P. 259; People v. O’Connor, 81 Cal.App. 506, 254 P. 630.
It is apparent from what we have said that it is not a question of error on the part of the trial court in the admission of evidence, or as to a matter of pleading, but a case where the jury is told that a defendant can be convicted where the prosecution has failed to prove the corpus delicti of the offense charged, unless the defendant establishes his innocence. Any such construction of section 4 ½ of article 6 of the Constitution of this state would render it violative of the Fourteenth Amendment of the Constitution of the United States as a denial of due process of law; that is, convicting a defendant upon a mere charge contained in the information or indictment, and thus denying such defendant the due process of law guaranteed to him.
The order and judgment of the trial court are reversed, and the cause remanded for further proceedings.
We concur: FINCH, P.J.; THOMPSON, J.