1, 2, and 10 and a portion of section 9 of said act. Sections 1, 2, and 10 are hereinabove reproduced. As to these, as parts of the court's charge, there is no objection suggested. It is, however, objected that it was error from which the defendants sustained serious damage to their substantial rights for the court to have embraced within its charge that portion of section 9 of the act establishing a disputable presumption of the guilt of persons charged under section. 10 upon the proof of certain facts. So much of said section as was included within the charge to the jury reads as follows:

"Every transfer of real property, or of an interest therein, though colorable in form, shall be void as to the state and the interest thereby conveyed or sought to be conveyed shall escheat to the state if the property interest involved is of such a character that an alien mentioned in section two hereof is inhibited from acquiring, possessing, enjoying or transferring it, and if the conveyance is made with intent to prevent, evade or avoid escheat as provided for herein. A prima facie presumption that the conveyance is made with such intent shall arise upon proof of any of the following groups of facts:

"(a) The taking of the property in the name of a person other than the persons mentioned in section two hereof if the consideration is paid or agreed or understood to be paid by an alien mentioned in section two hereof";

There are three other distinct acts the doing of which, or any one of which, will raise the presumption mentioned. The specific grounds upon which objection is urged against said instruction is: (a) That the said presumption was intended by the legislature to be invoked and applied exclusively in civil actions authorized by sections 7 and 8 of said act to be brought for the purpose of securing a decree escheating to the state any real property or leasehold interest in such property which has been acquired in violation of the terms of the act; (b) That said portion of section 9 is violative of that part of section 1 of article XIV of the constitution of the United States which provides that "no state shall deny to any person within its jurisdiction the equal protection of the law"; (c) That it is in direct contravention of the terms of article I, paragraph 3, of the American-Japanese treaty of 1911; (d) That the provision as to said presump

tion is invalid because, when given as an instruction to a jury in a case arising under section 10 of the act, it contradicts and destroys the effect of the presumption that all persons accused of public crime are innocent until their guilt is established beyond a reasonable doubt.

[7] (a) The statute does not expressly limit the application of the presumption to any particular action or proceeding which may, by virtue of certain of its provisions, be instituted in the superior court. Nor, as we read the statute, is there any reason arising from the statute itself or from a reasonable construction thereof which inclines us to the belief that it was the legislative intent that the presumption should have application only to civil cases or proceedings in escheat, as authorized by the act.

Section 1102 of the Penal Code provides that: "The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code."

We know of no other section or provision of the Penal Code whose language is such as to require the conclusion that the application of the presumption in question should not as well be applied to a criminal as a civil action authorized by the act. Hence, we hold that the presumption was properly stated to the jury in the charge of the court in this case.

[8] (b) and (c) The two propositions thus designated hereinabove may be considered together, since both involve the general contention that the presumption in question is discriminatory in its operation, in that it is applicable alone to cases in which a particular or single class or race of people is proceeded against in this state in an action in the courts of this state. But we think it will require but little reflection and no argument to satisfy any mind unfettered by prejudice against the Alien Land Law or unembarrassed by partisanship in favor of those accused under section 10 in a particular case that, in so far as it applies to criminal cases arising under the act in question, the provision of section 9 as to the conditions upon which the presumption will arise is neither amenable to the objection that it denies to any person or class of persons within this state the equal protection of the law nor subject to the criticism that it infringes any rights guaranteed to alien Japanese denizens within the state of California by article I, paragraph 3, of

the treaty of 1911 between our government and Japan. The only criminal proceeding authorized by the act is that which may arise under section 10 thereof, and that section is, it will be observed, sweeping in its scope. It excepts no one from its operative effect, but by its very language is made to apply to all persons, regardless of their race, nativity, or color. If two or more American-born citizens were to conspire to do the act or acts inhibited by said section their conduct in that regard would clearly fall within the condemnation of the section. Indeed, no better illustration of the legal soundness of this proposition can be found than in the instant case, in which, as we have reason to know, one of the accused is a native of the United States. In its application to criminal cases arising under section 10 of the act, the prima facie presumption which may arise under the conditions indicated by section 9 is, in its scope and effect, coextensive only with the scope of section 10. The presumption, therefore, as a rule of evidence, necessarily applies alike to all persons, irrespective of nativity, race, or color, who by their conduct come within the ban of section 10. It follows, then, that the rule as to the presumption is not in anywise or in any sense discriminatory as against any class or race of people or violative of any treaty rights of alien Japanese residing in this state.

The proposition decided in In re Terui, 187 Cal. 20 [17 A. L. R. 630, 200 Pac. 954], cited by the appellants, bears no relationship in a legal sense to the points here under consideration. In that case, the supreme court had before it the question of the constitutionality of an act of the legislature of 1921 (Stats. 1921, p. 613) imposing upon and exacting from "every alien male inhabitant of this state over twenty-one years of age and under sixty years of age" except certain enumerated incompetents, the payment of an annual poll or head tax of ten dollars. Former Chief Justice Angellotti, voicing the views of the court, held, as quite obviously no other conclusion could justly be announced under such circumstances, that, quoting from the syllabi: "In view of the provisions of the existing treaty between the United States and Japan, providing, among other things, that the citizens or subjects of neither shall be compelled, under any pretext whatever, to pay any charges or taxes other or higher than those that are or may be paid by native

citizens or subjects, the alien poll tax law of California is ineffective for any purpose with relation to any citizen of Japan."

This is all that was decided in the Terui case and thus readily is it to be perceived that, as stated, it has no application to or bearing upon the points here under discussion.

(d) Finally it is said, as we have seen, that the effect of embracing the presumption in an instruction addressed to a jury in a criminal action based on section 10 is to shift the burden of proof to the accused and so nullify the effect of the rule that the presumption of innocence abides with a defendant in a criminal case until the jury, from the evidence, has been convinced of his guilt beyond all reasonable doubt.

[9] It will not be denied that, if it be within the competence of the legislature, in the exercise of its powers under the constitution, to establish such a rule of evidence as is involved in the prima facie presumption under consideration, a trial court may, if by so doing it does not enter upon the domain of fact, instruct the jury as a matter of law that such presumption will arise upon the proof of a certain fact or group of facts in any criminal case to which it is applicable. And we know of no constitutional restriction upon the legislature to create or establish any rule of evidence whose effect, when applied, is not to deny to any person accused of crime a trial by due process of law. deed, it is in our opinion within the constitutional right of the legislature, or of the people, in the exercise of the powers of initiative which they have reserved to themselves, to change any rule of evidence now existing and place upon a defendant in a criminal case, of whatsoever character, a heavier burden in the trial of the charge against him than he is under the existing system required to bear.

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[10] But we do not understand that the presumption referred to was intended to relieve the people of the burden of proving the guilt of persons prosecuted under section 10 of the act beyond every reasonable doubt; nor do we think, when properly applied, the presumption will have that effect. It is a mere disputable presumption, the effect of which is to be overcome by such evidence only presented by the defendants as will be sufficient to create a reasonable doubt of their guilt. Its meaning is simply this: That, after the people have shown by sufficient evidence, either direct or

circumstantial, that the persons charged have by their joint acts effected a transfer of farming or agricultural land to an alien ineligible to become a citizen of the United States, then it rests with those persons to explain the transaction consistently with good faith and honest intentions or that the combination was formed with no intention to effect the wrongful result which their acts may appear upon their face to have brought about. The "burden" is neither in principle nor degree different from that imposed by the law on a person charged with the crime of murder. Section 1105 of the Penal Code provides: "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable."

The above section, which obviously casts upon a defendant in a murder case the burden of a certain degree, after the homicide has been shown by the people to have been committed by him, has in innumerable cases been held to represent a perfectly valid exercise of legislative power. But by it there was no intention in the legislature to say that the burden of proving the defendant's guilt beyond a reasonable doubt was not still upon the people, the quantum of evidence which he was required to present to support that burden being such only as would or will raise a reasonable doubt of his guilt of the crime of murder. (People v. Bushton, 80 Cal. 160, 164 [22 Pac. 127, 549]; People v. Boling, 83 Cal. 380, 382 [23 Pac. 421]; People v. Ah Gee Yung, 86 Cal. 144, 146 [24 Pac. 860]; People v. Newcomer, 118 Cal. 263, 271 [50 Pac. 405]; People v. Rodriguez, 182 Cal. 197 [187 Pac. 423].) [11] It should be suggested in this connection that an instruction to a jury declaring the prima facie presumption provided by section 9 of the act should always be accompanied by an instruction that the burden thus placed upon the defendants charged under section 10 of the act was only such as required the defendants to introduce evidence sufficient to create a reasonable doubt of their guilt.

It is, however, clear from its charge to the jury in the instant case, that the trial court did not regard the burden