OWEN, J.,
pro tem.,
Dissenting.
I dissent.
I am in full accord with the principles and reasoning set forth in Mr. Justice Seawell’s opinion rendered in the case of
People
v.
Osaki,
209 Cal. 169 [286 Pac. 1025]. But I cannot agree that the Osaki case can be used as authority to sustain the conviction of an American citizen when the district attorney has dismissed the charge against the ineligible alien in order to use such alien for the purpose of securing the conviction.
The Alien Land Act, as amended, provides (Deering’s Consolidated Supp. 1925-27, p. 845):
“Section 9a. In any action or proceeding, civil or criminal, by the state of California, or the people thereof, under any provisions of this act, when the proof introduced by the state, or the people thereof, establishes the acquisition, possession, enjoyment, use, cultivation, occupation, or transferring of real property, or any interest therein, or the having in whole or in part the beneficial use thereof by any defendant, or any of such facts, and the complaint, indictment or information alleges the alienage and ineligibility to United States citizenship of such defendant,
the burden of proving citizenship or eligibility to citizenship shall thereupon devolve upon such defendant
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"Section 9b. In any action or proceeding, civil or criminal, by the State of California, or the people thereof, under any of the provisions of this act, when the complaint, indictment or information alleges the alienage and ineligibility to United States citizenship of any defendant, proof by the state, or the people thereof, of the acquisition, possession, enjoyment, use, cultivation, occupation or trans-ferring of real property or any interest therein, or the having, in whole or in part of the beneficial use thereof by such defendant, or any such facts, and in addition proof that such defendant is a member of a race ineligible to citizenship under the naturalization laws of the United States, shall create a
prima facie
presumption of the ineligibility to citizenship of such defendant,
and the burden of proving citizenship or eligibility to citizenship as a defense to any such action or proceeding shall thereupon devolve upon■ such defendant.”
(Italics supplied.)
Had the indictment not been dismissed against Takahashi the burden of proving his citizenship or eligibility to citizenship would have rested upon him. Mr. Justice Seawell, in holding the foregoing sections of the act to be constitutional, reviews at length the “rule of convenience,” and makes a careful analysis of the cases which hold that where the “facts come more immediately within the knowledge of the defendant, the
onus probandi
rests upon him.” If Takahashi had been prosecuted as contemplated by the Alien Land Act, his conviction would have followed, had he failed to establish his citizenship or right to it, because the fact of his citizenship is within his knowledge, and not within the knowledge of the district attorney or the People of the state. Can the
onus
pass to Entriken and Thompson, who certainly can have no more ability to prove it than the district attorney? In order to secure an acquittal the defendants would have either been compelled to prove the citizenship or eligibility of Takahashi, or that of the shadowy Kosuzume, whose name the former forged to the lease. The Alien Land Act and the Osaki case,
supra,
contemplate that upon the shoulders of ineligible aliens shall rest heavily the burden of proving their right to citizenship, because the fundamental fact is solely within their keeping.
It cannot be contended that these defendants could prove the eligibility of either Takahashi or Kosuzume, and it
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must follow that when the indictment was dismissed against Takahashi the burden of proving it passed to the People. The district attorney being unable to prove eligibility, he must prove beyond a reasonable doubt and to a moral certainty that Takahashi and Kosuzume were not citizens nor eligible to citizenship before he can legally convict the two American citizens, defendants herein. Having dismissed the indictment against the chief offender, and using the alien to convict the citizens, forgetting, apparently, the whole spirit of the Alien Land Act, the reasons for its inception and enactment, he must be held to the same strict proof required in other criminal prosecutions.
It is admitted that Kosuzume was a dummy, whose name Takahashi signed to the lease of the land. There is no proof whatever that Kosuzume is either a citizen or an ineligibile alien, or that there was, or is, such a person in existence. As. to the citizenship of Takahashi, he admitted he was not a citizen. He stated once that he was born in Japan, and at another place in the record says he does not know where he was born, but was told he was born in Japan. This, coupled with the fact of his speaking Japanese, and his appearance, would have convicted him under the ruling of the Osaka case, since if he were being prosecuted, the burden of proving that he was eligible or a citizen would have been his. No longer a defendant, and not charged with the
onus probandi,
the nebulous proof adduced from this co-conspirator is used to establish the
corpus delicti.
The crime charged is conspiracy to violate the Alien Land Act. The very bone and sinew of such a crime is the ineligible alienage of the dismissed conspirator. The testimony of an accomplice must be viewed with distrust, and yet the very basic element of the crime is sought here to be proved by such testimony. I refuse to believe that the highest court in our state had any such situation in mind as here presented when the opinion in
People
v.
Osaki
was handed down. In fact, Mr. Justice Seawell placed an express limitation on that decision, doubtless, in his wisdom, feeling the danger of extending the rule, when he said:
“It is not intended by what we have said to extend the rule of convenience or burden of proof to common law crimes generally designated as
malum in se,
nor to all
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crimes
malum prohibitum.
We go no further than to apply the rule to the particular situation, in accordance with the express mandate of said amendments."
Furthermore, I cannot agree with the prevailing opinion that the remarks of the district attorney as quoted were not prejudicial error. It is true that the statement made by that official referred to Takahashi, but since the defendants were charged with conspiracy, and Takahashi was a co-conspirator, any statement made by him was applicable to the defendants Entriken and Thompson.
“We have his statement before the Grand Jury, and before this was ever taken to the Grand Jury. There was one made in my office ... If we hadn’t known about it, we would not have dismissed. We knew we had this record twice against him, and to let the insinuation pass after we had him twice, once before it went before the Grand Jury and then after it went to the Grand Jury.”
That remark, made in the presence of the trial jury, was promptly assigned by the attorney for the defense as prejudicial misconduct. The jury was not instructed to disregard it. It may not be said that it would have been without effect had the remarks referred to a statement of the defendants to the district attorney and to the grand jury. If the prosecutor had a statement
against him
twice on a charge of conspiracy, he undoubtedly had the same statement in effect
against
the defendants, the co-conspirators. It is idle to speculate whether the jurors were influenced by such a statement. Courts cannot be too careful of extraneous matter injected into the trial of a ease before a jury. That any of the jurors may have attached importance to the remark, or conceived such statements made to the prosecuting attorney and grand. jury to be important admissions
against
interest, is entirely possible. If any juror was influenced thereby the defendants would be entitled to a new trial. The statement was wholly out of place, and in the very essence of the crime charged, may have been prejudicial to the defendants.
That the defendants were careless in their dealings with Takahashi is certain. He had worked for them for some time, and they may have felt justified in believing his statement that Kosuzume was a citizen. All of their statements may be reconciled with belief in their innocence, although
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their carelessness would tend to show their guilt. To my mind their guilt has not been proved to a moral certainty and beyond a reasonable doubt.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 5, 1930, and the following opinion then rendered thereon:
THE COURT.
Appellants' petition for a rehearing of the judgment of this court rendered and filed May 22, 1930, is denied. The petition for rehearing was filed June 5, 1930. The attention of counsel for petitioners is called to rule 30 of Rules for the Supreme Court and District Courts of Appeal.