People v. McCloskey

California Court of Appeal Jan 15, 1926 No. Docket No. 886.Published

Before: Finch

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Holding. The court held that a statute prohibiting convicted felons from possessing concealable firearms is a valid exercise of police power and does not violate constitutional protections against ex post facto laws or deprivation of property, even when applied to weapons acquired before the statute's enactment. Furthermore, a weapon remains subject to the statute if it retains sufficient efficiency to be used as originally intended, regardless of its mechanical condition.

Issues

Whether a statute prohibiting convicted felons from possessing concealable firearms is an unconstitutional ex post facto law when applied to weapons acquired prior to the statute's enactment.
Whether a firearm that is rusty or mechanically impaired remains a 'firearm capable of being concealed upon the person' under the statute.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is a well-recognized function of the legislature in the exercise of the police power to restrain dangerous practices and to regulate the carrying and use of firearms and other weapons in the interest of the public safety.”

“No one can acquire a vested right to continue in possession of that which is a menace to the public safety.”

“no matter how disabled a weapon may be, if it still retains its efficiency to such an extent that it may in some manner be used as originally intended, a person carrying such a weapon contrary to law will be held criminally liable.”

FINCH, P. J.

The defendant was charged with the crime of having “in his possession and under his control a certain firearm, to-wit: a revolver capable of being concealed upon the person, he, the said John McCloskey having been convicted of a felony against the property of another, to-wit: burglary in the second degree.” He was convicted and sentenced to imprisonment in the state prison. This appeal is from the judgment of conviction and the order denying his motion for a new trial.

The evidence shows that the defendant was the owner of the revolver and that, at the time of his arrest, he was carrying it in the pocket of the right-hand door of an automobile owned and then being driven by him. Three cartridges fitting the revolver were in the same pocket. He admitted that he had been convicted of the alleged burglary.

Section 2 of the act under which the defendant was prosecuted, in so far as applicable to the questions here presented, provides: “No person who has been convicted of a felony against the person or property of another . . . shall own or have in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person.” (Stats. 1923, p. 696.) Section 15 provides: “This act shall not apply to antique pistols or revolvers incapable of use as such.”

[229]

The court refused to permit the defendant to prove that he owned and had possession of the revolver prior to the time the act went into effect. Appellant contends that

‘ ‘

one cannot lawfully be convicted of a crime for continuing to own and possess that which had lawfully become his property,” that as applied to such property the act is an

ex post facto

law, and that to punish the owner for continuing in possession thereof would be to deprive him of his property without due process of law. It has been held in a number of cases that the act is a valid and reasonable exercise of the police power of the state. “It is a well-recognized function of the legislature in the exercise of the police power to restrain dangerous practices and to regulate the carrying and use of firearms and other weapons in the interest of the public safety. . . . Private property rights of individuals are required to yield when in conflict with reasonable police regulations.”

People v. McCloskey

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FINCH, P. J.

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