Entriken

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):

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…

An indictment was returned by the grand jury of Imperial County charging appellants and Y. Takahashi, an alien Japanese, with the crime of conspiring together in the making of a lease of agricultural lands in violation of the Alien Land Law of the state of California. The case was dismissed against Takahashi to' enable him to become a witness for the People, and the jury found the appellants guilty as charged.

It appears that appellants were the owners of the land in question. Some time prior to July 1, 1928, Takahashi went into possession of the land and began to farm it. In November, 1928, a written lease was signed under date of July 1, 1928, with appellants appearing therein as lessors and K. Kosuzume as lessee. The lessee’s name was signed to the lease by Takahashi without any authority. In fact, there is a strong intimation in the record that Kosuzume was a fictitious person who had no existence outside of Takahashi’s mind. Takahashi remained in possession of the land and continued to farm it with the knowledge of appellants. He paid them the annual rent prior to July 1, 1928, by giving them $40 in cash and $510 in the form of his personal check. When Takahashi first…