People v. Garcia

California Court of Appeal May 25, 1950 No. Crim. 2605Published

Before: Nourse

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Holding. The court held that the Deadly Weapons Act is a constitutional exercise of police power, that proof of possession alone is sufficient for conviction under the statute, and that state courts may admit evidence obtained through warrantless searches.

Issues

Whether the Deadly Weapons Act violates the constitutional right to bear arms.
Whether a variance between the information alleging ownership and possession and proof of only possession requires reversal.
Whether evidence obtained via warrantless search and seizure is admissible in state court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It has been held that the statute is a proper exercise of the police power of the State enacted for the safety and general welfare of society.”

“Since the proof of possession was complete the defendant was not prejudiced by the wording of the information, and proof of possession alone is sufficient to support the judgment.”

“the federal Constitution does not affect the right of the State to use evidence seized in this manner.”

NOURSE, P. J.

Defendant was tried to a jury and convicted of a violation of the Deadly Weapons Act (Stats. 1923, p. 695; Deering’s Pen. Code Appendix, p. 774). The charge

[734]

of a prior conviction, of a felony and release on parole was admitted.

The evidence showed that defendant and a companion were driving a car about the streets of San Franseiseo at about 11 p. m., and were followed by two members of the police force whose suspicions were aroused and who stopped the car for investigation. As \\one of the officers opened the door of the car in which defendant was riding he saw defendant slip a gun under the seat. When ordered out of the car the defendant said: “Here I go back again.” “Back to Quentin.” When asked the meaning of those remarks the defendant explained that he was on parole. The Deadly Weapons Act declares it a felony for any person to have in his possession or control a deadly weapon when such person had been previously convicted of a felony.

Three grounds are urged for a reversal of the judgment. First, that under section 1 of article I of the state Constitution all men are guaranteed the right to bear arms for the protection of their life, liberty and property. Hence it is said the penal statute is unconstitutional. It has been held that the statute is a proper exercise of the police power of the State enacted for the safety and general welfare of society.

(People

Cordero,

50 Cal.App.2d 146 [122 P.2d 648].) It has also been held that a similar statute relating to the possession of weapons by those confined in a state prison did not violate section 1 of article I of the Constitution nor the Second Amendment to the federal Constitution which gives a citizen the right to keep and bear arms.

(People

Wells,

68 Cal.App.2d 476 [156 P.2d 979].)

Second, that there is a variance between information and proof in that it was charged that defendant did “own and have in his possession” such a weapon and there was no proof of ownership. The statute is in the disjunctive reading, “own

People v. Garcia

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NOURSE, P. J.

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