PEOPLE v. MURGUIA (1935)

The defendant appeals from a judgment of conviction of murder of the second degree. It was admitted by the defendant and proved by the only eyewitness 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; the deceased and he got into a quarrel over the game, and Martinez cursed him and called him a vile name. The latter remonstrated, and Martinez invited him outside. They did not immediately go out, but did so after a short time; the appellant going first and Martinez following him. When they got outside, the defendant testified, the deceased 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 started away from the scene, but was brought back unresistingly, by the only person who witnessed the shooting, and who, as a witness for the defense at the trial, corroborated the defendant's testimony.

Little comment is necessary on appellant's contention that the evidence supports neither a verdict of second degree murder nor of any other offense. The exact contention was advanced and disapproved in People v. Roselle, 20 Cal. App. 420, 129 P. 477. The defendant was charged with murder. He shot and killed Martinez. The jury was at liberty to convict him of murder of the first degree, or to acquit him if it believed he was justified in taking the life of the deceased. In this case, it is evident that while the jury believed that the deceased may, in some degree, have been the aggressor, the defendant was not justified in killing him. Assuming that the evidence here mught have warranted a verdict of murder of the first degree, such verdict, if rendered, would have included murder of the second degree, or one of manslaughter. People v. Muhlner, 115 Cal. 303, 47 P. 128; People v. McFarlane, 138 Cal. 481, 71 P. 568, 72 P. 48, 61 L. R. A. 245; People v. Coulter, 145 Cal. 66, 78 P. 348. It was not error, therefore, for the court to refuse to instruct the jury that it should find the defendant guilty of murder of the first degree or should find him not guilty.

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 his 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 P. 710, and People v. Minamino, 56 Cal. App. 386, 391, 205 P. 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. St. 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, etc.,’ 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 nereof, 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.’ Therefore, if you find from the evidence that the defendant was at the time of the killing of the said Aristeo [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.'

Appellant contends that the giving of this instruction was error, first, because it charges as to a question of fact, and is violative of the provision of the Constitution that ‘judges shall not charge juries with respect to matters of fact.’ Const. Art. 6, § 19. We do not regard the instruction as one of fact. To the argument of respondent that the statute expressly permits the giving of such an instruction, appellant replies that the provision of the statute included in the instruction is unconstitutional as not falling within any of the matters included in the title of the act. Const. art. 4, § 24. It has been long settled that the constitutional provision requiring the subject of an act of the Legislature to be expressed in the title must be liberally construed, and that all that can be required to be contained therein to meet the provision is a reasonably intellingent reference to the subject to which the legislation is to be addressed. In re Estate of Wellings, 192 Cal. 506, 519, 221 P. 628. We deem further citation of authority on that point unnecessary. For a somewhat comprehensive discussion of the question and citation of authorities, see the cited case. When the purpose of the act to control and regulate the possession of firearms in this state (supra), as expressed in its entire title, is borne in mind, it must at once appear that the provision of the act relating to the evidence in trials of persons charged with committing felonies against the persons of others while armed with any of the proscribed weapons is logically germane to the title of the act, and is included within its scope.

It is urged that, for another reason, the statute is unconstitutional. With that contention we do not agree. The argument against the constitutionality of the statute establishing the presumption rests upon the many cases which, in effect, hold that a law which provides that certain facts are conclusive proof of guilt are unconstitutional, as are those laws which would make an act prima facie evidence of crime which has no relation to a criminal act, and no tendency whatever to establish a criminal act (Const. art. 1, § 13). Such an authority is State v. Beach, 147 Ind. 74, 43 N. E. 949, 46 N. E. 145, 146, 36 L. R. A. 179. The reason for this rule is that ‘in judicial investigations the law of the land requires an opportunity for a trial; and there can be no trial if only one party is suffered to produce his proofs.’ 2 Cooley's Constitutional Limitations (8th Ed.) (Carrington) pp. 768, 769. ‘If, however, the Legislature, in prescribing the rules of evidence in any class of cases (as, for instance, here, felonies against the person of another), leaves a party a fair opportunity to establish his case or defense, and give in evidence to the court or jury all the facts legitimately bearing on the issues in the cause to be considered and weighed by the tribunal trying the same, such acts of the Legislature are not unconstitutional.’ State v. Beach, supra. As was said by the Supreme Court of Ohio: ‘It may be conceded that, within proper constitutional limits, the Legislature has the general power to prescribe rules of evidence and methods of proof—to determine what may or may not be competent evidence in a particular case—and, with certain qualifications, has, perhaps, the power to enact and prescribe that in criminal prosecutions certain facts, when duly established, shall be held to be presumptive or prima facie evidence of guilt.’ Hammond v. State, 78 Ohio St. 15, 84 N. E. 416, 15 L. R. A. (N. S.) 906, 125 Am. St. Rep. 684, 14 Ann. Cas. 732. Mr. Justice Lurton, in the case of Mobile, etc., R. Co., v. Turnipseed, 219 U. S. 35, 42, 43, 31 S. Ct. 136, 137, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463, has this to say: ‘Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, national and state, dealing with such methods of proof in both civil and criminal cases abound, and the decisions upholding them are numerous.’

If, in the present case, the presumption declared by the statute was made ‘conclusive,’ the objections to its constitutionality would be sound. The ‘prima facie’ presumption here involved does not in any way preclude defendant from establishing his innocence in opposition to it. The Legislature here has merely prescribed a rule of evidence in a class of cases, felonies against the person of another, and yet leaves the defendants in such cases a full and fair opportunity to establish their defense. In the case at bar, the defendant, by his own admissions, committed a voluntary homicide. Pen. Code, § 192, subd. 1. In committing the crime he used one of the weapons which, by the terms of the act, he was forbidden to carry without a license, which he did not have. We are of the view that the inference to be drawn from the fact that the defendant was in the unlawful possession of the revolver he carried at the time was not so unreasonable as to be a purely arbitrary mandate. The defendant accepted the challenge of the deceased to meet him outside the place where they were playing cards. He was the first to go out and, being in possession of the revolver, no doubt felt he was ready for the anticipated fray. It was therefore not error for the court to read to the jury the provision of the act relating to the intent of one charged with a felony against the person of another, under the circumstances of this case.

The judgment is affirmed.

I dissent. The evidence, technically speaking, makes a complete case of selfdefense. But it is possible under the evidence as a whole to deduce the conclusion that on account of the intoxication of the deceased and the willingness of the defendant to go outside for the purpose of indulging in an affray with him, that there was no real necessity for the homicide. The men were friends and for three weeks had been living together. It is readily inferable from the transaction that whisky, on the part of both the deceased and the defendant, caused the tragedy.

The court instructed the jury 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, * * * or while armed with any pistol, revolver, or other firearms 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.’

For several reasons the giving of this instruction was error and its prejudicial character is plain. Under it the jury were empowered, upon a mere statutory presumption, to find the defendant guilty not only of second degree but of first degree murder, when, under the evidence, the deceased and defendant were friends up to within a few moments before the shooting. When the defendant left his home with the gun, an assault upon the deceased could not have been in contemplation. The men were not only friendly when the gun was taken, but had actually gone to town together on this very day. Under these facts, it was a clear encroachment upon the province of the jury to authorize them to indulge said presumption of murder. Moreover, where the charge is murder in the first degree, requiring the presence of malice, deliberation, and premeditation, I cannot see how such an instruction can ever be properly given. Certainly it should not be given until evidence tending to prove these elements antedates the donning of the gun.

The title of the act from which the instruction was taken, so far as here material, reads: ‘An Act to control and regulate the possession, sale, and use of pistols, revolvers and other firearms capable of being concealed upon the person,’ etc. Clearly, there is therein no reference whatsoever to the creation of a rule of evidence as to crimes committed against the person while carrying a concealed weapon. Such a far-reaching rule, frustrating the time-honored quantum of evidence to complete the crime of murder in the first degree, could not be promulgated without a clear reference thereto in the title of the act.

I think a reversal is the proper order in this case.

WASTE, Chief Justice.

We concur: SHENK, J.; SEAWELL, J.; THOMPSON, J.