People v. Scott

151 P.2d 517, 24 Cal. 2d 774, 1944 Cal. LEXIS 279

Opinions

TRAYNOR, J.

In an information filed by the District Attorney of the County of Santa Barbara, defendant was accused of rape in Counts I, II, and III, on the basis of a single act of intercourse with a sixteen-year-old girl against her will. Count I charged statutory rape upon á female under the age of consent, in violation of subdivision 1 of section 261 of the Penal Code. Count II charged that the rape was accomplished by force and violence in violation of subdivision 3 of section 261. Count III charged that the rape was accomplished by threats of great bodily harm to the prosecutrix in violation of subdivision 4 of section 261. Count IV, based upon the same acts set out in Counts I, II, and III, charged defendant with contributing to the delinquency of a minor in violation of section 702 of the Welfare and Institutions Code. Count V charged the defendant with tampering with the identification marks on an automatic pistol in violation of section 13 of the Dangerous Weapons’ Control Law of 1923, as amended (Stats. 1923, ch. 339; Deering’s Gen. Laws, 1937, Act 1970, p. 999).

The defendant pleaded not guilty to each count. He was tried before a jury and convicted on all counts. Separate judgments were entered on each of the charges of rape in Counts I, II, and III sentencing defendant to the state prison for the term prescribed by law. The judgment on Count IV sentenced defendant to one day in the county jail, and the judgment on Count V sentenced him to the state prison for the term prescribed by law. All of the sentences were to run concurrently.

It is unnecessary to set forth in detail the testimony regarding the charges of rape. There can be no doubt of defendant’s guilt as to Count I. He admitted the act of intercourse and he admitted that complainant was not his wife. There was ample evidence that she was only sixteen years of age. As to Counts II and III the evidence establishes that the assault was accomplished by force and threats of great bodily harm to the complainant. The same evidence supports defendant’s conviction on Count IV. The defendant, however, cannot be convicted on three separate counts of rape, all based on a single act of intercourse. Under section 261 of the Penal Code a single act of intercourse amounts to only one punishable offense of rape even though it be accomplished under more than one of the circumstances enumerated in that section. (People v. Craig, 17 Cal.2d 453 [110 P.2d 403].) The separate judgments on Counts I, II and III, must therefore be consolidated into a single judgment. (Ibid.)

Defendant contends that the court’s adverse rulings on his motions to dismiss Counts II, IV and V require a reversal. The motion to dismiss Count II was based on the ground that defendant had not been legally committed by a magistrate. (Pen. Code, § 995(1).) After reading the transcript of the preliminary examination, the court denied the motion. This transcript was not brought up on appeal, and error cannot be assumed in its absence.

The motion to dismiss Count TV was based on the claim that the superior court, when not sitting as a juvenile court, is without jurisdiction to try a defendant accused of violating section 702 of the Welfare and Institutions Code unless the prosecution was initiated in the juvenile court and then transferred to the superior court sitting in the exercise of its general jurisdiction. The juvenile court has original jurisdiction over all misdemeanors defined in section 702 of the Welfare and Institutions Code (In re Gamo, 122 Cal.App. 725, 726 [10 P.2d 770]) and has jurisdiction to impose punishment in such cases when the defendant enters a plea of guilty. Jurisdiction rests with the superior court if the defendant, as in this case, enters a plea of not guilty. (People v. Superior Court of San Bernardino County, 104 Cal. App. 276 [285 P. 871]; In re Gamo, supra.) It was stipulated that each of the two departments of the Superior Court in the County of Santa Barbara has been designated as a juvenile court. Under defendant’s plea of not guilty it would have been an idle act to transfer the ease to the juvenile court to be transferred back to the superior court. In any event, defendant cannot complain that this was not done, for on the hearing of defendant’s motion, the court declared: “I am telling you specifically that if you wish it, we will convene on the fourth count as a juvenile court.” That was not what the defendant wished, and the court denied the motion.

The evidence as to Count V shows that defendant had in his possession an automatic pistol, and that someone had tampered with the identification marks in violation of the statute. The court instructed the jury in the language of section 13 of the Dangerous Weapons’ Control Law of 1923, which provides: “No person shall change, alter, remove, or obliterate the name of the maker, model, manufacturer’s number, or other mark of identification on any pistol or revolver. Possession of any such firearm upon which the same shall have been changed, altered, removed, or obliterated, shall be presumptive evidence that such possessor has changed, altered, removed, or obliterated the same.”

Defendant contends that his motion to dismiss Count V should have been granted on the ground that the violation of the Dangerous Weapons’ Control Law charged therein and the rape charged in the other counts of the information could not be tried together. Section 954 of the Penal Code provides that “An indictment, information, or complaint may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts” and that the court “in the interest of justice and for good cause shown, may, in its discretion, order that the different offenses or counts set forth in the indictment or information be tried separately.” The statute provided originally that an indictment could charge only one offense, but an amendment in 1905 authorized a joinder of different offenses if they related to the same act, transaction, or event (People v. Plath, 166 Cal. 227 [135 P. 954]; see 14 Cal.Jur. 64), and an amendment in 1915 permitted the joinder of offenses if they were “connected together in their commission.” As it now reads the statute permits the joinder of different offenses, even though they do not relate to the same transaction or event, if there is a common element of substantial importance in their com mission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant. (People v. Thorn, 138 Cal.App. 714, 735 [33 P.2d 5]; see People v. West, 34 Cal.App.2d 55, 59 [93 P.2d 153]; People v. Derenzo, 46 Cal.App.2d 411, 415 [115 P.2d 858].) The possession of the firearm in the present case intimidated the complainant and was therefore an important element of the rape. It was also the basis of the offense charged under the Dangerous Weapons’ Control Law. The possession of the weapon was thus a common and important element of each crime. Since the joinder did not result in embarrassment or prejudice to the defense (see Pointer v. United States, 151 U.S. 396, 403 [14 S.Ct. 410, 38 L.Ed. 208]; Sheppard v. State, 104 Neb. 709 [178 N.W. 616, 18 A.L.R. 1074]; 27 Am.Jur. Indictments and Information, § 130), it cannot be held that justice required separate trial or that the court abused its discretion in denying defendant’s motion.

Defendant challenges the constitutionality of the provision of section 13 that makes possession of a firearm whose marks of identification have been tampered with prima facie evidence that the tampering was done by the possessor. He contends that the rational connection between a fact proved and the fact presumed required by the due process clause of the 14th Amendment (Tot v. United States, 319 U.S. 463, 467 [63 S.Ct. 1241, 87 L.Ed. 1519] ; Morrison v. California, 291 U.S. 82, 90 [54 S.Ct. 281, 78 L.Ed. 664]; Western & Atlantic R. Co. v. Henderson, 279 U.S. 639, 642 [49 S.Ct. 445, 73 L. Ed. 884]; Manley v. Georgia, 279 U.S. 1 [49 S.Ct. 215, 73 L.Ed. 575]; Casey v. United States, 276 U.S. 413, 418 [48 S.Ct. 373, 72 L.Ed. 632]; Yee Hem v. United States, 268 U.S. 178, 183 [45 S.Ct. 470, 69 L.Ed. 904]; McFarland v. American Sugar Ref. Co., 241 U.S. 79, 86 [36 S.Ct. 498, 60 L.Ed. 899]; Luria v. United States, 231 U.S. 9, 25 [34 S.Ct. 10, 58 L.Ed. 101]; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 81 [31 S.Ct. 337, 55 L.Ed. 369]; Bailey v. Alabama, 219 U.S. 219, 238, 239 [31 S.Ct. 145, 55 L.Ed. 191]; Mobile J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 43 [31 S.Ct. 136, 55 L.Ed. 78]) does not exist between the fact of possession . and the presumption that the possessor committed the crime of tampering with the marks.

The rational connection required between a proved fact and a presumed fact must be distinguished from the relation between, a proved fact and an alleged fact that warrants a jury’s inferring the one from the other (Tot v. United States, supra, at p. 468). An inference must be justified by the circumstances of the particular case. A statutory presumption, however, designed for general application in a given field and based on a pattern of experience in that field, is justified 'by the likelihood that the unpredictable circumstances of other cases will fall within the same pattern. The presumption may be invoked if the proved fact is “at least a warning signal according to the teachings of experience” (Morrison v. California, supra, at p. 90) of the fact presumed, and “the evidence held to be inculpatory has at least a sinister significance.” (Ibid. p. 90.) The due process clause, however, forbids the introduction into the law of a fiction under the cloak of a presumption that would contradict the presumption of innocence and work a “wrong contrary to the real truth and substance of the thing” (Hibberd v. Smith, 67 Cal. 547, 561 [4 P. 473, 8 P. 46, 56 Am.St.Rep. 726]) by imposing on the accused a burden that “is not justified in the'light of experience as to the circumstances of life as we know them” (Tot v. United States, supra, at p. 468). Thus, a presumption of an intent to defraud based on breach of contract of employment by an employee who has received an advance payment is a mere fiction and therefore unconstitutional. (Bailey v. Alabama, 219 U.S. 219 [31 S.Ct. 145, 55 L.Ed. 191]; see Pollock v. Williams, 322 U.S. 4 [64 S.Ct. 792, 88-L.Ed.-].) It is likewise a fiction that the possession of a firearm by a person previously convicted of a crime of violence or by a fugitive from justice is prima facie evidence of shipping, transporting, or receiving in interstate commerce of such firearm by the accused after the date of enactment of the statute. (Tot v. United States, supra.) It may be a plausible supposition that the possessor of a firearm might use it for a crime of violence but there can be no “argument drawn from experience” (Tot v. United States, supra, at p. 468) to justify the presumption that such a firearm was acquired in' interstate commerce. The presumption in the California statute differs from that declared unconstitutional in the Tot case. It applies to any possessor of a firearm with impaired marks of identification, whereas the presumption in the Tot ease applied only to a certain group of possessors of firearms, whose members were no more likely to acquire firearms in interstate commerce than others. Most important, the presumption in the California act that the possessor of a weapon whose marks of identification have been tampered with committed the crime of tampering with them is based on the condition that there be proof of tampering with the marks of identification on the firearm and is therefore concerned only with the identification of the person who committed the crime. The statute in the Tot case made possession of a firearm the basis of the presumption not only that the possessor was the person who committed the crime, but that the crime was committed even though there was nothing suspicious about the firearm to indicate that the crime had been committed. Presumptions like that in the California statute, based on the possession of a sinister thing, are traditional in criminal legislation, which frequently imposes on the possessor of contraband goods the burden of explaining that he did not acquire or use them unlawfully. Thus the possession of burglary tools by anyone except artisans and tradesmen at their places of business (State v. Fitzpatrick, 141 Wash. 638 [251 P. 875]), or the possession by junk-dealers of certain bottles with trade-marks or with trade-marks obliterated (People v. Cannon, 139 N.Y. 32 [34 N.E. 759, 36 Am.St.Rep. 668]), can be made prima facie evidence of their unlawful acquisition or of the intent of the possessor to use them unlawfully, just as the possession of articles, the sale of which is forbidden, may be made prima facie evidence of the keeping for sale of such articles. (State v. Nossaman, 107 Kan. 715 [193 P. 347, 20 A.L.R. 921] ; State v. Barrett, 138 N.C. 630 [50 S.E. 506, 1 L.R.A.N.S. 626]; Caffee v. State, 11 Okla.Cr. 485 [148 P. 680]; see 33 Words and Phrases, Prima Facie Evidence, Criminal Law; 28 Columb.L.Rev. 489.) Possession of intoxicating liquor and narcotics particularly has served to impose on the possessor the burden of explaining the lawfulness of their acquisition and use. (Casey v. United States, supra; Yee Hem v. United States, supra; United States v. Yee Fing, 222 F. 154; United States v. Ah Hung, 243 F. 762; see 9 Wigmore, Evidence [1940] § 2513, pp. 423 and 424 and cases there cited; 31 A.L.R. 1222; 51 A.L.R. 1139; 86 A.L.R. 179.) In all such cases the possession of an article that has been or is likely to be made an instrument of crime raises a suspicion that justifies calling on the accused for explanation. (Casey v. United States, supra, at p. 418; People v. Fitzgerald, 14 Cal.App.2d 180, 194, 195 [58 P.2d 718].) In the light of these eases the presumption in the present ease is not “such a forced and unnatural one that the legislature may not enact that it shall be made.” (People v. Cannon, 139 N.Y. 32, 46 [34 N.E. 759, 763, 36 Am.St.Rep. 668].)

The Dangerous Weapons Control Act is designed to minimize the danger to public safety arising from the free access to firearms that can be used for crimes of violence. The identification of a person who has used a firearm criminally becomes more difficult and the attractiveness of a firearm for criminals is correspondingly increased, if its marks of identification have been tampered with. It would therefore be in the public interest to forbid the possession of firearms whose marks of identification have been tampered with. The mere threat of conviction to the possessor of such a firearm engendered by the presumption that he did the tampering is less severe than a statutory prescription of punishment for possession of such a firearm. The imposition of punishment for the possession of such a weapon is within the power of the Legislature to regulate the traffic in firearms. Legislation for regulatory purposes, which dispenses with the condition of awareness of wrongdoing and places the burden of acting at his peril on a person otherwise innocent “but standing in personal relation to a public danger” (United States v. Dotterweich, 320 U.S. 277, 281 [64 S.Ct. 134, 88 L.Ed. -1; see Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70 [30 S.Ct. 663, 54 L.Ed. 930]; United States v. Balint, 258 U.S. 250, 252 [42 S.Ct. 301, 66 L.Ed. 604]) is a traditional means of regulation. The protection of the public interest in eliminating firearms whose marks of identification have been tampered with by a statute that resorts to the less severe means of regulation by using the “inherent coercive power of a presumption” (Pollock v. Williams, supra, 64 S.Ct. 792, 802) is likewise within the police power of the state. (See In re Bear, 216 Cal. 536, 540 [15 P.2d 489, 83 A.L.R 1402]; Amos Bird Co. v. Thompson, 274 P. 702, 705.) The tampering with marks of identification is ordinarily done in secrecy, and if the state could not require the possessor of the firearm to explain his possession, it would hardly be possible for the prosecution to determine who committed the crime. There is nothing unreasonable in requiring the possessor to explain when and how he came into possession of a firearm whose marks of identification have been tampered with. The presumption does not impose on him the burden of proving who committed the crime, nor does it require him to persuade the jury of his innocence. He must merely go forward with evidence to the extent of raising a reasonable doubt that he tampered with the identification marks. When he has done so, he enjoys the benefit of the presumption of innocence, and it is then incumbent on the prosecution to establish his guilt beyond a reasonable doubt. (People v. Fitzgerald, supra, at p. 195; People v. Agnew, 16 Cal.2d 655, 665 [107 P.2d 601]; People v. Post, 208 Cal. 433, 437 [281 P. 618]; People v. Bushton, 80 Cal. 160, 164 [22 P. 127, 549].)

Defendant objects to the instruction with respect to the statutory presumption solely on the ground that the statute is unconstitutional. He does not contend that the instructions are otherwise erroneous or that the verdict would probably have been different had other instructions been given. Since the statute is constitutional, further inquiry as to possible error is unnecessary, for the court will not ordinarily consider questions that are not assigned as prejudicial error or presented in the briefs of counsel. (People v. French, 12 Cal.2d 720, 764 [87 P.2d 1014]; People v. Wier, 20 Cal.App.2d 91, 94 [66 P.2d 703]; People v. Cowan, 44 Cal.App.2d 155, 158 [112 P.2d 62]; People v. Britton, 6 Cal.2d 10, 13 [56 P.2d 491].) Even if it be assumed, however, that the trial court’s instruction should have been more specific in certain particulars, for example, that it should have instructed the jury that defendant was required only to raise a reasonable doubt that he did the tampering,- it is improbable that the result would have been different. (People v. Rogers, 22 Cal.2d 787 [141 P.2d 722]; Cal. Const., art. VI, § 4½.) Defendant was admittedly inconsistent in explaining the source from which he obtained the firearm, and the explanation that he finally adhered to at the trial was clearly contradicted by other evidence.

The judgment as to Counts I, II and III is consolidated and modified to read “whereas the said Aaron Scott has been found guilty of the crime of rape, a felony, as defined and prescribed in sub-divisions 1, 3, and 4 of section 261 of the Penal Code being separate statements of the same offense, it is therefore ordered, adjudged and decreed that the said Aaron Scott be punished by imprisonment in the state prison of the State of California at San Quentin for the term prescribed by law. ” As so modified the judgment and the order denying a new trial are affirmed. The judgment and the order denying a new trial as to Count IV are affirmed. The judgment and the order denying a new trial as to Count V are affirmed.

Gibson, C. J., Shenk, J., Curtis, J., Edmonds, J., and Schauer, J., concurred.