People v. Smith

171 P. 696, 36 Cal. App. 88, 1918 Cal. App. LEXIS 515

• Court: California Court of Appeal
• Decided: January 28, 1918
• Docket: Crim. No. 713.
• Status: Published

Opinion

LENNON, P. J.

The defendant was charged with the violation of section 3 of chapter 145 of the Statutes of 1917. The information also charged him with a prior conviction of grand larceny. Upon his arraignment the defendant pleaded guilty of the crime charged, and admitted the prior conviction. The indeterminate sentence provided by law was thereupon imposed, directing that the defendant be taken and confined in the state prison at San Quentin for a period not to exceed five years.

This is an appeal from the judgment in which the only question raised is as to the constitutionality of the section of the statute under which defendant was charged and convicted.

That section reads: “Every person who carries in any city, city and county, town or municipal corporation of this state any pistol, revolver, or other firearm concealed upon his person, without having a license to carry such firearm as hereinafter provided in section six of this act, shall be guilty of a misdemeanor, and if he has been convicted previously of any felony, or of any crime made punishable by this act, he is guilty of a felony.” (Stats. 1917, p. 221.)

The section in question is a reasonable police regulation. (Ex parte Cheney, 90 Cal. 617, [27 Pac. 436]; Ex parte Luening, 3 Cal. App. 76, [84 Pac. 445].)

While the statute provides a heavier penalty for one who has been previously convicted of a felony than for one who has suffered no prior conviction, nevertheless it operates uniformly upon ail persons in the same category, and there is a reasonable basis for the classification. Therefore it is not objectionable as class legislation.

Nor does the provision prescribing a heavier penalty for one previously convicted of a felony render the law ex post facto. “A law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be takén into the aer count and the punishment to be graduated accordingly.” (Ex parte Gutierrez, 45 Cal. 429.)

The objection that the subject of carrying weapons is purely á municipal affair is not well taken. The prevention and punishment of crime is always a proper subject for state legislation.

Judgment affirmed.

Beasly, J., pro tem., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 28, 1918.