Opinion
As Modified, Oct. 17, 1927.
Hearing Granted by Supreme Court Nov. 10, 1927.
COUNSEL
William M. Mouse was convicted of an infamous crime against nature, and he appeals, Affirmed.
Catherine A. McKenna and J. Irving McKenna, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., John L. Flynn, Deputy Atty. Gen., and John D. Richer, of Los Angeles, for the People.
OPINION
CRAIG, J.
The appellant was charged by information consisting of two counts with having committed the infamous crime against nature, a felony, in the county of Los Angeles, on the 20th day of November, 1926, and on the 1st day of January, 1927. Thereafter, and on February 10, 1927, the appellant pleaded guilty to the first count of the information and applied for probation, whereupon the trial court continued the pronouncing of judgment and sentence as to the first count, and plea to the second count until the 24th day of February, 1927. Upon the date last mentioned, the defendant was permitted to withdraw his plea of guilty, and to enter a plea of not guilty, to the first count, his trial was set for March 8, 1927, as to both counts, and he was then tried by a jury and was convicted of having committed both offenses as charged. Motions for new trial and in arrest of judgment were presented and denied, and the defendant appeals from the judgment and from each of said orders.
It appeared that one of the offenses alleged to have been committed by appellant occurred within the boundaries of the National Home for Disabled Volunteer Soldiers at Sawtelle, and that the other was committed outside its grounds. Appellant was an inmate of the home, and the principal contention of appellant is that the superior court of the state of California was without jurisdiction to try him for any offense committed within the domain of the soldiers’ home, because it is insisted the government of the United States has exclusive jurisdiction to punish for all offenses committed therein.
There can be no doubt that the state of California has jurisdiction to punish all persons committing offenses against its penal laws within the state, unless deprived of such authority by the Constitution of the United States or by express legislative enactment. In citing authorities in an attempt to establish his theory, appellant has, we think, overlooked certain important considerations. The mere fact that the United States government has jurisdiction in a given case does not in itself argue against the state government also possessing a concurrent jurisdiction; hence the citation of section 4835 of the United States Revised Statutes (Barnes’ Federal Code, § 8821 [24 USCA § 137; U.S. Comp. St. § 9279]) is of little value. The maintenance of a soldiers’ home is not one of the purposes named in article 1, § 8, of the Constitution, for which lands, when taken, come, ipso facto, within the exclusive jurisdiction of the United States government, and, when land is purchased by the general government for purposes not among those named, the jurisdiction of the United States is not exclusive unless expressly so declared. In re Kelly (C. C.) 71 F. 545. In order that Congress shall have power to exercise exclusive jurisdiction over land purchased by it, as provided by section 8 of article 1 of the Constitution, such land must not only be ceded by the particular state, but there must be an acceptance of the same by Congress. In this case the record fails to show any acceptance by the federal government of the property involved or any conveyance to the general government by the state. Deeds were introduced in evidence showing a conveyance by John P. Jones and Arcadia B. de Baker to the National Home for Disabled Volunteer Soldiers, a corporation. However, in passing it might be said that section 8 of article 1 apparently has no application to the maintenance of a home for disabled soldiers, but it expressly limits its uses to those for the "erection of forts, magazines, arsenals, dockyards, and other needful buildings." The mere fact that the National Home for Disabled Volunteer Soldiers, a corporation, was created by an act of Congress does not imply that such entity is a part, or is representative, of the United States government. Nor does the ownership of land by said corporation necessarily result in a waiver by the state government of jurisdiction as provided by the Statutes of 1897, at page 51. This law expressly limits its cession of exclusive jurisdiction to lands held, occupied, or reserved by the government of the United States for "military purposes or defense." Here the purposes do not fall within the scope of this law nor is the ownership shown to be in the United States. That ownership by the National Home for Disabled Volunteer Soldiers, a corporation, is not the same as by the government of the United States was held in Be Kelly, supra, which authority is decisive of this appeal. In the matter of upholding the jurisdiction of the state courts the present case is even stronger than that presented by In re Kelly, since there the land was conveyed directly to the government, which in turn conveyed to the corporation, whereas here there is no evidence tending to show that the state or the United States had any direct or indirect part in the conveyance, or that the state renounced, or the United States accepted, any interest in the lands, or jurisdiction over offenses committed thereon.
The only remaining point advanced by the appellant is an asserted insufficiency of evidence to sustain the verdict and judgment, but there is no merit in this contention, and it is apparently not urged with great confidence. Two young boys testified to the acts alleged in the information, an eyewitness to one of the offenses testified that he saw it committed, and an officer swore that appellant admitted one of them at the time of his arrest. Upon the trial, the defendant denied his connection with either offense, and produced several character witnesses. From all of this evidence the jury, under the instructions of the trial court, determined that the defendant was guilty in each instance. Upon the record thus presented, the judgment and orders appealed from will not be disturbed.
No provision is made by law for an appeal from an order denying a motion in arrest of judgment.
The judgment and order denying motion for new trial are affirmed.
We concur: WORKS, P. J.; THOMPSON.J.