CONRET, J. “The defendant appeals from a judgment of conviction of murd'er of the second degree and from order denying his motion for new trial. It was admitted by the defendant, and proved by the only eye-witness to the offense, that defendant killed the deceased, Martinez, by shooting him in the head. The defendant took the stand and testified that he and Martinez had been playing poker with some other Mexicans; that he and Martinez got into a quarrel over the game, and Martinez cursed him and called him a vile name. He remonstrated, and Martinez invited him outside. They did not go out immediately, but did so after a short time, defendant going first and Martinez following him. When they got outside, the defendant testified, Martinez started toward him with a knife; that he, the defendant, warned him not to come closer, and fired two shots from a revolver into the ground; that Martinez still advanced with a knife in his hand, whereupon he fired a third shot, this one at Martinez, hitting him in the temple. The defendant then [192]started away from the scene, but was brought back, unresisting, by the only person who witnessed the shooting, and who, as a witness for the defense at the trial, corroborated the defendant’s testimony.”
“Complaint is made by appellant that the trial court gave to the jury an instruction on flight by one who has committed a crime. The complaint has little merit. After shooting Martinez, the defendant had walked some sixty or seventy feet from where the body of the deceased lay when he was stopped and brought back to the spot by the man who had witnessed the shooting. While it is true the defendant had not gone far from the immediate scene of the crime, we are of the view that the case is well within the line of the decisions of this court in People v. Erno, 195 Cal. 272, 281 [232 Pac. 710] , and People v. Minamino, 56 Cal. App. 386, 391 [205 Pac. 463]. Immediate flight, in the absence of any accusation—in advance, perhaps, of the probability of an accusation, formal or informal—may afford persuasive evidence of a consciousness of guilt. (See People v. Erno, supra.) In this case, the defendant had killed the deceased. No other inference can be reasonably drawn from the record than that he knew he would be charged with the crime. The defendant was, therefore, not prejudiced by the giving of the instruction. ’ ’
“The defendant had no license or permit to carry a pistol, as is required by the act to control and regulate the possession of pistols, revolvers and other firearms capable of being concealed upon the person (Stats. 1923, p. 695). The court charged the jury as follows: ‘You are instructed that section 3 of the act of the legislature of the state of California entitled “An Act to control and regulate the possession, sale and use of pistols, revolvers and other firearms capable of being concealed upon the person ... ”, approved June 13, 1923, Statutes of 1923, p. 695, as amended, reads in part as follows: “In the trial of a person charged with committing or attempting to commit a felony against the person of another while armed with any of the weapons mentioned in section one hereof, or while armed with any pistol, revolver or other firearm capable of being concealed upon the person, without having a license or permit to carry such firearms as hereinafter provided, the fact that he was so armed shall be prima facie evidence of his intent to commit such felony.” [193]Therefore, if you find from the evidence that the defendant was at the time of the killing of the said A'risteo (Aristideo) Martinez armed with a pistol or revolver and did not have a license to carry such pistol or revolver, then, the fact that he was so armed and did not have such license is prima facie evidence- that he intended to kill and murder the said Aristeo (Aristideo) Martinez. ’ ”
The foregoing paragraphs are quoted from the former decision of this court, rendered in this case prior to the order granting the present rehearing. Assuming, without deciding, that the evidence was sufficient to support the verdict, it is at least equally true that the evidence would have been sufficient to sustain a verdict of not guilty. In other words, the jury might well have found a justifiable killing by the defendant in defense of his own life; and therefore, if the instruction hereinabove set forth is erroneous, the error in giving it to the jury was prejudicial and should entitle defendant to a reversal of the judgment.
It is a conceded fact that the defendant, at the time and place of the occurrence now under review, was carrying on his person the pistol with which the shooting was done, and that he did not have a license to carry such weapon. If the statute simply provided for licenses or permits to carry such weapons, and prohibited persons from carrying them without license, and did not undertake to enact a rule of evidence governing cases of this kind, a court would have no hesitation in deciding that the mere absence of a license to carry , the weapon is a fact entirely unrelated to the question of the intent with which the possessor of the weapon used it in the shooting of another person. It follows that the rule announced in the instruction, to be valid at all, must derive its force exclusively and solely from the legislative will as enacted in the statute. We need not follow counsel in their learned discussions concerning the right of the legislature to enact rules of evidence. That power has been extensively assumed and exercised, with the concurrent approval of the courts. But it is not based upon any unlimited legislative authority. The courts, as custodians of the judicial powers of government, are not obliged to enforce a statute which through a rule of evidence arbitrarily deprives a litigant of his rights, or which permits a defendant to suffer conviction without due process of law. Under this statute it [194]appears that a defendant armed with a pistol or revolver and not having a license therefor is not only prima facie guilty of intent to commit the felony charged against him, but that it is not even necessary to prove that the weapon.was used by him in making the alleged assault. The words “prima facie evidence of his intent to commit such felony” are somewhat uncertain in their meaning. But if they are to have any effect at all, it is reasonable to assume that they refer to evidence sufficient in itself to stand as proof of the fact of intent, i. e., the fact of intent of the defendant, in this case, to kill and murder his opponent, the deceased.
The arbitrary character of the instruction is provable by mere inspection of the statute from which the instruction was derived. It is only when a person is “charged with committing or attempting to commit a felony against the person of another” that the fact of his being (without license) armed with the described weapon becomes prima facie evidence of his intent to commit such felony. So if the defendant here had been charged with the commission of a crime against property—larceny or burglary, for instance—the fact that he was then and there (without license) armed with a pistol would not be evidence of his intent to commit the larceny or burglary. Indeed, under the terms of this statute, if the evidence were to the effect that a killing was done with a sword or with a club six feet long, then the mere fact that at the same time the defendant (without license) had a pistol in.his pocket, would by the statute be made prima facie evidence of his intent to kill with the sword or with the club.
For the reasons above set forth, we are of the opinion that the court erred in giving the said instruction and that such error was so far prejudicial that the conviction amounted to a miscarriage of justice.
The judgment is reversed and the order denying motion for new trial is reversed.
Thompson, J., concurred.