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 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 "chickenhouses." 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,

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 was insufficient because of the want of facts or in the statement of the offense thereby sought to be charged are as follows:

"First, the indictment did not charge that the land involved was agricultural land or that it was not land which an alien Japanese might acquire for residence or commercial purposes in accordance with the treaty between the United States and Japan;

"Second, the grand jury did not find or charge that the transaction was for the use or benefit in any way of the defendant Akada;

"Third, the grand jury did not find or charge that the land was not to be acquired for the use and benefit of defendant Cockrill, in whose name the contract was taken;

"Fourth, the grand jury did not find or charge that the contract was not taken, or that the land was not to be finally transferred, in satisfaction of any lien thereof."

Clearly, if the document filed as an indictment in the first instance stated no offense under the Alien Land Law and the purported second amended indictment, upon which the accused were tried, does state such an offense, then it must be held that the purported trial and the conviction of the defendants were coram non judice and absolutely void, inasmuch as the document purporting to be the second

amended indictment would be no indictment at all, it not having been found and presented by the grand jury. Nor could the document stand as an information, since the prerequisites of the filing of an information are wanting. (Secs. 809, 872, Pen. Code.)

The primary question, then, is whether the "original indictment" stated an offense under the Alien Land Law; and this question must be determined upon a consideration of certain provisions of said law and certain provisions of the treaty between this government and the empire of Japan. (37 Stat. 1504.)

The first section of the act in question reads as follows: "All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, transmit and inherit real property, or any interest therein, in this state, in the same manner and to the same extent as citizens of the United States, except as otherwise provided by the laws of this state."

Section 2 provides: "All aliens other than those mentioned in section one of this act may acquire, possess, enjoy and transfer real property, or any interest therein, in this state, in the manner and to the extent and for the purpose prescribed by any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject, and not otherwise."

Section 7 reads in part as follows: "Any real property hereafter acquired in fee in violation of the provisions of this act by any alien mentioned in section 2 of this act or by any company, association or corporation mentioned in section 3 of this act, shall escheat to, and become and remain the property of the State of California. . . . The provi sions of this section and of sections 2 and 3 of this act shall not apply to any real property hereafter acquired in the enforcement or in satisfaction of any lien now existing upon, or interest in such property, so long as such real property so acquired shall remain the property of the alien company, association or corporation acquiring the same in such manner. No alien, company, association or corporation mentioned in section 2 or section 3 hereof shall hold for a longer period than two years the possession of any agricultural land acquired in the enforcement of or in satisfaction of a mort

gage or other lien hereafter made or acquired in good faith to secure a debt."

The first part of section 8 contains a similar provision as to escheat in relation to any leasehold or other interest in real property less than the fee acquired in violation of the provisions of the act by any alien mentioned in section 2 of said act or by any alien, company, association or corporation mentioned in section 3. There are other provisions in said section which are not material to this inquiry.

Section 10, upon which the indictment herein is predicated, reads as follows: "If two or more persons conspire to effect a transfer of real property, or of an interest therein, in violation of the provisions hereof, they are punishable by imprisonment in the county jail or state penitentiary not exceeding two years, or by a fine not exceeding five thousand dollars, or both.”

The initial clause of article I of the treaty between the United States and Japan reads as follows: "The citizens or subjects of each of the high contracting parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established."

It will be noted that sections 1 and 2 of the Alien Land Law describe and designate the classes of aliens competent to acquire and possess real property in this state, the first including all that class of aliens that are eligible to acquire the rights of citizenship in the United States and the second embracing all aliens, whether they are or are not eligible to citizenship of this country, that are entitled to acquire and possess real property by virtue of the provisions of any treaty between this government and the country of which such aliens are natives guaranteeing such right.

While section 3 is not particularly important to the discussion of the points herein made, it may be explained that it guarantees the right to own real property by such aliens as are not mentioned in sections 1 and 2 as may constitute a majority of the members of any company, association, or

corporation organized under the laws of this state or any other state or nation or who hold a majority of the issued capital stock of said company, etc., and which corporation is authorized to acquire, possess, enjoy, and convey real property or any interest therein in this state, in the manner and to the extent and for the purposes prescribed by any treaty existing at the time of the enactment of said law between the government of the United States and the nation or country of which such members or stockholders are citizens or subjects. Obviously, no other class of aliens ineligible to become citizens of the United States than those classes mentioned in the above sections of the Alien Land Law are entitled to acquire agricultural or farming land in this state.

[1] With this understanding of the provisions of the Alien Land Law and the provisions of the treaty between this government and the government of Japan which are pertinent to the present investigation, we will proceed to an examination of the indictment as it was found and presented by the grand jury to the superior court. That pleading is in the following language:

"W. A. Cockrill and Y. Akado are accused by the Grand Jury of the County of Sonoma, State of California, by this Indictment, found this 15th day of November one thousand nine hundred and twenty-one of the crime of conspiracy to effect a transfer of real property in violation of the Alien Land Law of the State of California, committed as follows: "The said W. A. Cockrill and Y. Akado on or about the 19th day of September, nineteen hundred and twenty-one, at and in said County of Sonoma, State of California, that the said defendants W. A. Cockrill and Y. Akado did then and there willfully, unlawfully and feloniously conspire together to effect a transfer of real property in the County of Sonoma, State of California, and an interest therein, and did so willfully, unlawfully and feloniously take and enter into an agreement to purchase certain real property from Bartholomeu C. Souza and Mary C. Souza in the name of said defendant W. A. Cockrill and paid thereon on the purchase price thereof the sum of One Hundred and Fifty dollars. lawful money of the United States, which said money so paid on said purchase price was paid by said defendant Y. Akado, said Y. Akado being an alien and a sub