62 Cal.App. 22, Crim. 655, People v. Cockrill

• Judge: JUDGES: HART, J. Burnett, J., and Finch, P. J., concurred. Seawell, J., having been trial judge, did not participate in denial of hearing in supreme court. Burnett, J., and Finch, P. J., concurred.
• Parties: THE PEOPLE, Respondent, v. W. A. COCKRILL et al., Appellants
• Docket Number: Crim. 655
• Citation: 62 Cal.App. 22,216 P. 78
• Court: California Court of Appeals Court of Appeals
• Date: 30 April 1923

Page 22

62 Cal.App. 22

216 P. 78

THE PEOPLE, Respondent,

v.

W. A. COCKRILL et al., Appellants

Crim. No. 655

Court of Appeals of California, Third District

April 30, 1923

Page 23

A Petition to have the Cause Heard in the Supreme Court, after Judgment in the District Court of Appeal, was Denied by the Supreme Court on June 28, 1923.

APPEAL from a judgment of the Superior Court of Sonoma County and from an order denying a new trial. Emmet Seawell, Judge.

Affirmed.

COUNSEL:

Chas. A. Wetmore, Jr., Gillogley, Crofton & Payne and Frank A. Duryea for Appellants.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

JUDGES: HART, J. Burnett, J., and Finch, P. J., concurred. Seawell, J., having been trial judge, did not participate in denial of hearing in supreme court.

OPINION

HART, Judge

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[216 P. 79] HART, J. The defendants, Cockrill, a lawyer by profession, and Akada, a native of Japan, were indicted by the grand jury of Sonoma County for the crime of conspiring to cause or effect the transfer of real property to an alien ineligible to citizenship under [216 P. 80] the laws of the United States, in violation of the provisions of an initiative act adopted by the people at the general election held on November 2, 1920 (Stats. 1921, p. lxxxiii), and designated and known as the " Alien Land Law." The defendants demurred to the indictment on general and special grounds and also moved to set it aside for alleged statutory reasons. The motion was disallowed, but the district attorney, conceding the force of the demurrer in a certain particular, was, upon motion, allowed to amend the indictment. Like proceedings were had as to the amended indictment, and, by leave of the court, the district attorney again amended the indictment, and it was upon

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the second amended indictment that the defendants were finally arraigned, tried for and convicted of the crime above stated.

At the time fixed for the arraignment of the defendants for sentence, the latter, through their counsel, interposed a motion in arrest of judgment and also a motion for a new trial, both of which were denied.

The appeal is by the defendants from the judgment and the order denying their application for a new trial.

The transaction out of which this prosecution developed took place on the twenty-sixth day of August, 1921, negotiations for its consummation having previously been carried on for several weeks by the defendants with B. C. Souza and Mae C. Souza, his wife, the parties owning the land involved in the transaction. The Souzas were the owners of approximately thirty acres of agricultural land situated near Petaluma, in Sonoma County. When the defendants proposed to purchase the land, the Souzas stated to them that, if the purchase of the land was to be made for Akada himself and the property to be for his own possession, occupation, and use, they did not think that the sale could be made under the law, referring, of course, to the Alien Land Law. Akada and his wife (also a native of Japan) had, prior to the transaction here involved, lived on a farm in Sonoma County for a number of years and during that time several children were born to them, and both Akada and Cockrill declared to the Souzas that the land was to be purchased for the American-born children of said Akada. After considerable discussion of the matter, Cockrill, so the Souzas testified, stated that he had consulted the district attorney of Sonoma County about the transaction and had been advised by that official that if the land was to be purchased for the American-born children of Akada the transaction would be perfectly legal. This statement was positively denied by the district attorney. He testified that no such advice was given by him to Cockrill; that the latter had never consulted him about the matter.

Finally, a written agreement for the purchase of the land, dated the twenty-sixth day of August, 1921, was entered into between the Souzas and the defendant Cockrill whereby the land was sold to the latter for the sum of $ 2,250. Upon the execution of this agreement Cockrill paid the vendors the

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sum of $ 150. The agreement provided that on the execution of a deed and certificate of title to the property the sum of $ 1,100 was to be paid and that the balance of the purchase price, $ 1,000, was " to be covered by a mortgage on said property, said mortgage to be held by parties of the first part [the Souzas] or their assigns." The Souzas, as we have stated, testified that the defendants represented to them at all times that the land was to be purchased for and to be owned by the American-born children of the defendant Akada. Akada furnished the money with which the payments on the land were made.

It appears that the abstract of title disclosed some defects in the title, and on September 24, 1921, Cockrill, representing the Souzas as their attorney, commenced a suit to quiet title in the superior court of Sonoma County. There is no question raised here as to the fact that four of the children of Akada, for whom it was claimed by Cockrill and Akada the land was purchased, were of American birth.

After the action to quiet title was commenced Cockrill was subpoenaed to appear before the grand jury to give testimony as to the transaction. Before the inquisitorial body he testified that Akada purchased the property for his American-born children; that the contract of sale was taken in Cockrill's name as trustee for said children, and that the intention was to complete the transaction by taking a deed in the name of said children and then having a guardian of their estates appointed for them.

It appears that at the time of the several transactions herein referred to, while believing that Akada's native-born children could take title to agricultural lands in this state, and that it was not unlawful for him (Akada) to furnish the money for the purchase of such lands for such purpose, Cockrill was of the opinion that an alien Japanese father could not act as guardian of his children's estate and hence " arrangements were made to have an American citizen appointed as such guardian as soon as the title should be found good and the actual transfer made." Parenthetically, we may say that the supreme court in the case of Estate and Guardianship of Yano, 188 Cal. 645 [206 P. 995], decided subsequently to the transactions above referred to, held that an alien incapable of becoming a citizen of this country may not only furnish the money for the purchase

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of agricultural lands for his American-born children, but may also act as guardian of the persons and estate of such children.

There was testimony to the effect that, upon the execution of the agreement of purchase [216 P. 81] and sale, the defendant Akada commenced to improve the land by erecting thereon a number of buildings which, aside from the one in which he and his family were to reside, were to be used as " chicken-houses." All this testimony was by the court limited in its application to the defendant Akada. There were also admitted in evidence certain statements made by Cockrill and Akada when testifying before the grand jury regarding the transaction involved herein, as was also an extrajudicial statement by Akada relative to said transaction, in which, however, he declared that the property was bought for his children, but in which he gave what appears to be an inconsistent explanation as to the source from which the money used in purchasing the property came. The above statement embraces, substantially, all evidence of material importance introduced by the people in support of the charge. As to the defense, Cockrill's testimony was all that was received in rebuttal of the showing made by the people, Akada not having been called to testify. Cockrill's testimony consisted of an effort on his part to explain that the transaction involving the purchase of the land was carried on in good faith and according to a conscientious interpretation by him of the provisions of the Alien Land Law and that the intention was to purchase the land for Akada's American-born children.

The defendants advance a number of points on which they claim to be entitled to a reversal of the judgment and the order. Most of these points, while involving challenges of the legal soundness of certain given instructions and the action of the court in disallowing others, proposed by defendants, and rulings of the court as to the admissibility of certain evidence, in reality involve an assault upon certain portions of the Alien Land Law upon the ground of their alleged invalidity. These points we will now proceed to consider.

1. The defendants vigorously contend that, in allowing the purported indictment to be amended, the court committed error in this: That the indictment, as originally filed,

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did not state an offense under the act in question, and hence no amendment thereof, even if thus an offense under said law was stated, could make it an indictment, since the situation in such case would be as if the grand jury had not found and presented an indictment against the accused.

The authority for the allowance of amendments of indictments and informations is in section 1008 of the Penal Code, so much of which as is apposite to the present consideration reads as follows: " An indictment or information may be amended by the district attorney without leave of court, at any time before the defendant pleads. Such amendment may be made at any time thereafter, in the discretion of the court, where it can be done without prejudice to the substantial rights of the defendant. An indictment cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination."

The particulars in which it is claimed that the indictment as originally filed...