In re Wong Hane

California Supreme Court Sep 4, 1895 No. No. 31, Crim.Published

Before: Harrison

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Holding. The court held that a city ordinance making the mere possession of a lottery ticket a crime while shifting the burden of proof to the defendant to prove their possession was innocent is unconstitutional. Because the unconstitutional burden-shifting provision was integral to the ordinance's definition of the offense, the entire ordinance is invalid.

Issues

Whether a city ordinance that criminalizes the possession of a lottery ticket unless the defendant proves their possession was innocent violates constitutional rights.
Whether an unconstitutional burden-shifting provision in a municipal ordinance can be severed from the remainder of the ordinance.

Disposition. Petitioner discharged.

Quotations verified verbatim against the opinion

“To the extent that the defendant is required to establish his innocence, the provisions of the ordinance violate his constitutional rights.”

“The ordinance is to be tested by its own terms.”

“As we can consider the ordinance only in the form in which it has been enacted, we must hold that it did not authorize the arrest of the petitioner.”

Synopsis

Municipal Ordinance—Possession of Lottery Ticket—Presumption of Guilt—Constitutional Law.—A municipal ordinance declaring it unlawful for any person to have in his possession any lottery ticket unless it be shown that such possession is innocent or for a lawful purpose, assumes to overthrow the presumption of innocence, and to put upon the defendant the burden of showing that such possession was lawful or innocent; and such ordinance is a violation of constitutional rights and is invalid.

Id.—Construction of Ordinance—Proof of Criminal Intent—Test of Ordinance—Definition of Offense.—The clause of the ordinance declaring that the offense exists, unless it be shown that the possession of the lottery ticket was innocent or for a lawful purpose, cannot be disregarded, nor can the prosecution prove the criminal intent of the defendant, or show that his possession was not innocent or for a lawful purpose; but the ordinance is to be tested by its own terms, and the ■qualification is attached to the definition of the offense, and is of necessity required to be established by the defendant.

Id.—Inseparable Provision.—No effect can be given to the ordinance by disregarding the qualifying clause; but the provisions of the ordinance are to be considered as a whole, and it cannot be assumed that the city council would have adopted the first clause of the ordinance without enacting the condition thereto, and the clauses must be regarded as inseparable, and not as independent.

Harrison, J. The petitioner is held in confinement hy the chief of police of the city of Los Angeles under a warrant of arrest issued hy the police judge of that .city upon a complaint'charging him with the violation of a city ordinance, in that he did “ willfully and unlawfully have in his possession, such possession being neither innocent nor for a lawful purpose, a certain tool, device, and paper used and intended to be used in [681]and for the contriving, setting'up, preparing, and drawing a certain lottery.” The ordinance under which the ■complaint is made' is as follows:

“ The mayor and council of the city of Los Angeles do ordain as follows:

“ Section 1. It shall be unlawful for any person to have in his possession, unless it be shown that such possession is innocent or for a lawful purpose, any lottery ticket, or any ticket, certificate, paper, or instrument, purporting or representing, or understood to be or to represent, any ticket, chance, share, or interest in or dependent upon the event of any lottery; or any tool, instrument, stamp, or device used or intended to be used in or for contriving, preparing, making, writing, printing, stamping, or getting ready for sale or distribution any lottery ticket or tickets.

“ Sec. 2. Any person who shall violate any of the provisions of this ordinance shall be deemed guilty of ■a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars, nr be imprisoned in the city jail for a term not exceeding six months, or by both such fine and imprisonment.”

The effect of this ordinance is to make proof of the mere possession of a lottery ticket a misdemeanor, and to place upon the defendant the burden of showing that his possession was lawful or innocent. The mere possession of a lottery ticket does not, however, of necessity involve the possessor in a crime. The ticket may be in possession of the court, or of one of its officers, to be used as evidence upon the trial of one charged with ■selling it. It may be in the possession of one who purchased it in a country which recognizes the right to traffic in lottery tickets, and who is merely passing through the city. The Penal Code of this state does not make the purchase of a lottery ticket an offense—the provisions of that code being directed against the selling of such tickets. By the very terms of the ordinance under consideration, it is assumed that the possession of the ticket may. be , lawful or innocent, and that in such case the

In re Wong Hane

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