Opinion
Rehearing Granted Oct. 4, 1932.
Appeal from Superior Court, Ventura County; William D. Dehy, Judge.
A. L. Ferguson was convicted of the possession of metal knuckles, and he appeals from the judgment and from the denial of a motion for new trial.
Judgment and order affirmed.
See, also, 11 P.2d 636.
COUNSEL
Jarrett Beckett, of Ventura, for appellant.
U.S. Webb, Atty. Gen., and James C. Hollingsworth and Burton L. Rogers, both of Ventura, for the People.
OPINION
STEPHENS, Justice pro tem.
Defendant was convicted by a jury of the possession of "metal knuckles" (Stats. 1923, p. 695; Stats. 1925, p. 542, and Stats. 1931, p. 2316), and appeals from the judgment and from the denial of a motion for new trial. Several specifications of error are presented to us for consideration.
The specification that the verdict is contrary to the evidence cannot be sustained, for the reason that the evidence is conclusive even to the extent of the admission by defendant himself that he was the owner and possessor of the knuckles for a long time prior to and at the time of his arrest.
The specification that the statute is invalid for the reason that it acts as an ex post facto law cannot be sustained. People v. McCloskey, 76 Cal.App. 227, 244 P. 930.
The specification that the district attorney was guilty of misconduct is without merit.
The specification that the statute is repealed by implication by the enactment of sections 417 and 467 of the Penal Code cannot be sustained, as those sections refer to the use and to the intention to use the weapons therein referred to, while the statute invoked herein refers to the possession of deadly weapons.
The specification that the court erred in denying defendant’s motion for a new trial is dependent wholly upon the rulings in the other specifications.
There is, then, but one point raised by the appeal which merits discussion: Is the statute, which makes the mere possession of metal knuckles a crime, within the police power of the state, or is it unconstitutional as being unreasonable and arbitrary? The evidence of defendant is that he acquired the knuckles from his father and brought them to California several years ago; that he has never carried them on his person, although he has moved them with him when removing from one residence to another; that during the last few months prior to his arrest they were kept in a dresser drawer, or upon a shelf in the house where he was living; and that he had always kept them as a keepsake or curio. The trial judge permitted this testimony over objection, but instructed the jury that possession was the test of guilt, and declined to instruct that their use or lack of use, or their being kept as a keepsake or curio, would affect the guilt or innocence of the accused.
In principle, the question has been conclusively answered by the appellate courts of this state. In People v. Gonzales, 72 Cal.App. 626, 237 P. 812, the constitutionality of the so-called Firearms Act (Stats. 1923, p. 695) was under consideration. In that case, as in the instant case, the conviction was sought to be reversed because the statute made criminal the mere possession of a weapon. Likewise in each case the appellant claims an entire lack of criminal intent. The court in the case cited, quoting from page 630, of 72 Cal.App., 237 P. 812, 813, said: "In the case of People v. Wolfrom, 15 Cal.App. 732, 115 P. 1088, it is said: ‘When the intent is not made an affirmative element of the crime, the law imputes that the act knowingly done was with criminal intent, and it need not be alleged nor proven.’ A perusal of the statute which is the subject of appellant’s attack shows that the mere possession of a firearm by any person described in the act is sufficient to constitute a criminal offense. The language of the statute is that ‘* * * No person who has been convicted of a felony against the person or property of another or,’ etc., ‘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.’ By the statute, intent on the part of a defendant accused of the commission of the offense is not made an assential to the completion of the criminal act; and whether or not the act was committed knowingly would necessarily be a question of fact for determination by the jury." See Ex parte McClain, 134 Cal. 110, 66 P. 69, 54 L. R. A. 779, 86 Am. St. Rep. 243.
The general subject under discussion is treated in the following cases: People v. Gonzales, supra, 72 Cal.App. 626, 237 P. 812; People v. James, 71 Cal.App. 374, 235 P. 81; People v. Camperlingo, 69 Cal.App. 466, 231 P. 601; People v. McCloskey, 76 Cal.App. 227, 244 P. 930; People v. Rogers, 112 Cal.App. 615, 297 P. 924. We find the following in section 64, volume 5, California Jurisprudence: "Where the power exists to legislate, the court is not concerned with the wisdom or expediency of the law. If there is any theory upon which the provision might reasonably have been concluded by the legislature to be essential, the court may not interfere."
Firearms have their legitimate uses; hence the law regulates their use and prescribes who shall be prohibited their possession. But there is impressed upon slungshots, sandbags, black-jacks, and metal knuckles the indubitable indicia of criminal purpose. To every person of ordinary intelligence, these instruments are known to be the tools of the brawl fighter and cowardly assassin and of no beneficial use whatever to a good citizen or to society. The Legislature may take note of and act upon such common facts. Ex parte Yun Quong, 159 Cal. 508, 114 P. 835, Ann. Cas. 1912C, 969. It can regulate and proscribe the use of a thing so that its beneficial use may be enjoyed and its detrimental use prohibited. It follows that, if the beneficial use of a thing is entirely lacking or grossly disproportionate to its harmful use, the police power may absolutely prohibit its possession. Ex parte Yun Quong, supra.
There is no question of mistake or unwilling or unwitting possession in this case. Appellant intentionally brought this unlawful weapon into this state, an offense in itself, and moved it about with him as he removed from place to place. Should he have resolved to use it for the cruel purpose for which it was made, it was ever in easy reach. His defense of innocent intention in its possession would in principle permit the same defense by one bearing concealed weapons. Such a defense would, in the main, necessarily be dependent upon the testimony of the accused as to his intention. The almost impossibility of proof is obvious, and in good reason may have been the primary cause for making "possession" the gravamen of the offense.
The suggestion of the remote possibility that the keeper of a museum might be convicted under the terms of the statute may be grounds for an amendment to it, but the legality of statutes is not measured by extreme or unlikely possibilities. United States v. Kirby, 7 Wall 482, 19 L.Ed. 278. When the statute is read as a whole, it seems clear that the Legislature meant to enact no halfway measure, for it is therein provided that "blackjacks, slungshots, billies, sandclubs, sandbags, and metal knuckles are hereby declared to be nuisances and shall be subject to confiscation and summary destruction whenever found within this state." St. 1923, p. 698, § 7. It seems clear to us that the effective prohibition of the use of weapons of this sort depends upon the right to prohibit possession thereof. In such case there can be no doubt that the right to protect society must prevail over the mere individual desire to possess.
The statute does not offend against the state or the national Constitutions, and we think the trial court was right in instructing the jury that possession under the facts of this case was the essence of the offense and in refusing to give instructions in conflict with that principle.
Judgment and order affirmed.
I concur: IRA F. THOMPSON, J.
I concur in the judgment: WORKS, P. J.