[Crim. No. 713.

First Appellate District.

January 28, 1918.]

#### THE PEOPLE, Respondent, v. CHARLES SMITH, Appellant.

Criminal Law—Carrying Concealed Weapons Without License— Constitutionality of Act of 1917.'—Section 3 of chapter 145 of the 'Statutes of 1917 (Stats. 1917, p. 221), providing that every person who carries in any municipal corporation any pistol or other firearm concealed upon his person without a license, shall be guilty of a misdemeanor, and of a felony if previously convicted of any *89felony or of any crime made punishable by the act, is a reasonable police regulation.

Id.-—Heavier Penalty por Previous Offenders—Act not Class Legislation.—Such act is not objectionable as class legislation, from the fact that it provides a heavier penalty for one who has been previously convicted of a felony than for one who has suffered no prior conviction, since it operates uniformly upon all persons in the same category and there being a reasonable basis for the classification. Id.—Act not Ex Post Facto.—Such act is not, on account of the provision prescribing a heavier penalty for one previously convicted of a felony, an *ex post facto*law.

Id.—Carrying of Weapons—Subject for State Eegulation.—The subject of carrying weapons is a proper one for state legislation, and is not purely a municipal affair.

APPEAL from a judgment of the Superior Court of Alameda County. P. B. Ogden, Judge. .

The facts are stated in the opinion of the court.

R. M. Royce, for Appellant.

U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.

LENNON, P. J.

The defendant was charged with the violation of section 3 of chapter 145 of the Statutes of 1917. The information also charged him with a prior conviction of grand larceny. Upon his arraignment the defendant pleaded guilty of the crime charged, and admitted the prior conviction. The indeterminate sentence provided by law was thereupon imposed, directing that the defendant be taken and confined in the state prison at San Quentin for a period not to exceed five years.

This is an appeal from the judgment in which the only question raised is as to the constitutionality of the section of the statute under which defendant was charged and convicted.

That section reads: “Every person who carries in any city, city and county, town or municipal corporation of this state any pistol, revolver, or other firearm concealed upon his person, without having a license to carry such firearm as hereinafter provided in section six of this act, shall be guilty of a misdemeanor, and if he has been convicted previously of *90any felony, or of any crime made punishable by this act, he is guilty of a felony.” (Stats. 1917, p. 221.)

The section in question is a reasonable police regulation. *(Ex parte Cheney,*90 Cal. 617, [27 Pac. 436]; *Ex parte Luening,*3 Cal. App. 76, [84 Pac. 445].)

While the statute provides a heavier penalty for one who has been previously convicted of a felony than for one who has suffered no prior conviction, nevertheless it operates uniformly upon ail persons in the same category, and there is a reasonable basis for the classification. Therefore it is not objectionable as class legislation.

Nor does the provision prescribing a heavier penalty for one previously convicted of a felony render the law *ex post facto.*“A law is not objectionable as *ex post facto*which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be takén into the aer count and the punishment to be graduated accordingly.” *(Ex parte Gutierrez,*45 Cal. 429.)

The objection that the subject of carrying weapons is purely á municipal affair is not well taken. The prevention and punishment of crime is always a proper subject for state legislation.

Judgment affirmed.

Beasly, J., *pro tem.,*and Kerrigan, J., concurred.

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 March 28, 1918.