I dissent.
This appellant has been found guilty of perjury. The alleged perjury consists in the charge that in his affidavit of registration he gave his name as Sam Darcy when his true name is alleged to be Samuel Dardeek, and that he gave his place of birth as New York, when, in fact, it was Russia. This, the lower court held to be perjury, although the evidence admittedly shows that appellant possessed all of the requirements of an elector, and was legally entitled to register as a voter. In other words, the statements found to have been false in no way impaired the purity of the ballot, in no way qualified an otherwise incompetent elector, and in no way gave the franchise to a person not entitled to it. For this offense appellant has been found guilty of perjury for which he could have been subjected to imprisonment for a maximum period of fourteen years. (Pen. Code, sec. 126.) It is my opinion that the evidence, as a matter of law, is insufficient to support the conviction.
The evidence, on the name issue, showed the following: At birth appellant was named Srool Adam Dardeek. From his earliest youth he was called Samuel or Sam, and sometimes used the middle name of Adams. For many years, in California and elsewhere, he was known as Sam Darcy. He married under that name in 1926 and the next year was remarried under the name Dardeek. Several applications for passports were secured under the name Dardeek. In California, where he took an active part in political affairs, he was always known as Sam Darcy. He was a candidate for mayor of San Francisco in 1931, and was the Communist candidate for Governor in this state in 1934. Both candidacies were under the name Sam Darcy. He wrote political pamphlets and lectured under that name. The evidence is undisputed that in this state he was always known as Sam Darcy, but that in his dealings *355with the federal government in connection with passports he used his birth name of Dardeck.
It seems to be the theory of the majority opinion that the use of other than a birth name in registering, unless a change in name is confirmed by court decree, as a matter of law, constitutes the crime of perjury. That is not the law. Under the common law rule, where it is not done for a fraudulent purpose, a person may lawfully change his name without resort to legal proceedings. (See cases collected 45 C.J. p. 381, sec. 15; 38 AmJur. p. 610, sec. 28.) A statute such as exists in this state providing a statutory proceeding for securing court approval of a change of name, as long as the statute does not provide that the statutory method is exclusive (and the statute of this state does not so provide), in no way affects this rule. Such statute is in aid of the common law rule. As long as it is not done for a fraudulent purpose, a man may change his name without resort to the courts, and the name so assumed becomes his legal name. (In re Ross, 8 Cal.2d 608 [67 P.2d 94, 110 A.L.R. 217]; Emery v. Kipp, 154 Cal. 83 [97 P. 17, 129 Am.St.Rep. 141,16 Ann.Cas. 792, 19 L.R.A.N.S. 983]; In re Useldinger, 35 Cal.App.2d 723 [96 P.2d 958] ; Ray v. American Photo Player Co., 46 Cal.App. 311 [189 P. 130]; Everett v. Standard Acc. Ins. Co., 45 Cal.App. 332 [187 P. 996]; for cases from other states see 45 C.J. p. 382, fn. 86; 38 Am.Jur. p. 610, sec. 28; annotations 110 A.L.R. 219; 2 L.R.A.N.S. 1089; L.R.A. 1915D, 982; 14 L.R.A. 692.)
In the instant ease there was neither charge nor evidence that appellant used the name Darcy for any false, fraudulent or criminal purpose. This is admitted by respondent. The evidence is uncontradicted that in this state he had never been known by any other name. The fact that he occasionally used his birth name of Dardeck in his passport applications in no way detracts from the fact that he was generally known as Darcy. In view of the fact that his citizenship was dependent upon the naturalization of his father, it is obvious he had to use such name in such applications, because, otherwise, there would have been no record of his citizenship. In this state appellant’s name was legally Darcy, and no crime was committed by registering under that name.
The second charge is that appellant falsely averred he was born in New York, when, in fact, he was born in Russia. It may be conceded that the evidence supports the finding that this statement was wilfully false. This, however, does not *356make it perjurious. In order to be perjury the false statement must be material. (See. 118, Pen. Code.) The material issue' in an affidavit of registration is whether the registrant has the right to vote. Under the Constitution and laws of this state, citizenship, age and residence are the three main requisites for an elector. Electors possessing those qualifications may lawfully register, and, if registered, may vote. The object of registration laws is to prevent unqualified persons from voting. (Bergevin v. Curtz, 127 Cal. 86 [59 P. 312]; Welch v. Williams, 96 Cal. 365 [31 P. 222].) Such laws are aimed at preserving the purity of the ballot box and are not aimed at preventing a qualified elector from voting. They are for the purpose of preventing fraudulent voting. (Attorney General v. Detroit, 78 Mich. 545 [44 N.W. 388, 18 Am.St.Rep. 458, 7 L.R.A. 99].) The registration laws are not intended to act as a trap for a qualified elector, so that for minor discrepancies he is either to be deprived of the right to vote or subjected to a trial for perjury. Neither in the majority opinion nor in the brief of the attorney general is one case cited (and I have found none) where a conviction for perjury has been sustained for a misstatement in an affidavit of registration where, in fact, the registrant was qualified to vote. Darcy was admittedly a qualified elector. He was lawfully entitled to register. He was a citizen. At most, his registration was a faulty one that could have been canceled or corrected. (Sec. 300, Elec. Code, superseding see. 1109, Pol. Code.) The election law provides sufficient penalties for faulty registration. Under section 300 of the Elections Code any person may proceed by action to cancel an illegal registration, while under section 139 of that code (old see. 42a, Pen. Code) every person who allows himself to be registered “knowing himself . . . not to be entitled to registration” is subject to imprisonment for a maximum of three years. It is inconceivable that the Legislature intended that a faulty registration of a qualified person should constitute perjury with a maximum punishment of fourteen years when a deliberate illegal registration by an unqualified person should only ■ be punished by three years maximum. It was never the purpose of the perjury statute to permit prosecutions on matters not material to the purpose of the affidavit. The affidavit signed by appellant required him, among other things, to answer as to his occupation and his height. If he had incorrectly designated his occupation, or his height, being qualified to *357register, could he be subjected to the penalties of perjury? Obviously, it was never the intent or purpose of the perjury statute to include such immaterial misstatements. The only material misstatements that could constitute perjury are those in relation to the qualifications set forth for a qualified elector in section 1, article II of the Constitution. That section requires that the registrant be twenty-one years of age, a citizen for at least ninety days, a resident of the state for one year and of the county for ninety days, and of the precinct forty days. There was no false statement as to any of these matters. Darcy was a citizen and had the necessary residential requirements. The material fact was that Darcy was a citizen, not how he acquired citizenship. (See, Leavine v. State, 101 Fla. 1370 [133 So. 870].) The cases in this state properly have been very strict in requiring the false statement to be material to the specific inquiry before a conviction for perjury will be sustained. Thus, although testimony in an action may be false and wilfully false, it is not perjurious if it relates to collateral matters. (People V. Ah Sing, 95 Cal. 657 [30 P. 797] ; People v. Jones, 123 Cal. 299 [55 P. 992]; People v. Perazzo, 64 Cal. 106 [28 P. 62]; People v. McDermott, 8 Cal. 288, People v. Planer, 23 Cal.App.2d 251 [72 P.2d 767].)
The attorney general argues that false statements as to place of birth could be used for a fraudulent purpose by an ■unqualified person to qualify himself as a voter. That is not the test. The test is whether this false statement was material to the matter then in issue—i. e., the legal right of Sam Darcy to register. We are not interested in what might be done by some fraudulent person. If a fraudulent act is committed, so that an unqualified person apparently qualifies as a voter by means of a fraudulent affidavit, he may be punished for perjury or for the offense defined in section 139 of the Elections Code. Because someone might be guilty because of fraud is weak ground indeed to justify a conviction of Darcy where fraud was admittedly not present.
As part of his defense appellant urged that by this prosecution he was denied the equal protection of the laws in violation of the federal and state Constitutions. All evidence offered by him on this issue was refused admission. Appellant thereupon offered to prove, through various public officials, the following: That various designated persons in San Francisco had registered to vote at various times, and that their affidavits contained false statements similar to the one here *358involved, but that such persons had not been prosecuted; that the records of the Justice’s, Municipal and Superior Courts of San Francisco show that never in the history of those courts had a person ever been prosecuted in California for perjury, or otherwise, for filing a false affidavit where the person was, in fact, a qualified elector; that there are thousands of registration affidavits on file in San Francisco showing errors, false statements and fraudrdent statements, and that there never has been a prosecution in San Francisco of any qualified elector for such mistake or false statement; that the custom of the registrar’s office, when such mistakes have been discovered, has been to send postcards to registrants informing them to come in and correct their affidavits; that in examining 2% of the total registrations in San Francisco 600 mistakes similar to the ones here charged, were discovered. Through the Assistant Attorney General of California he offered to prove that the records of the attorney general for twenty years showed no such prosecution in California; that the attorney general in 1934 instituted an injunction suit in Los Angeles (culminating in Pierce v. Superior Court, 1 Cal. 2d 759 [37 P.2d 453, 460]) seeking to cancel thousands of registration affidavits on the ground they were false and fictitious, but that not one of the persons accused of such false registration was ever criminally prosecuted. In fact, not one registration was even canceled. Through this witness and the district attorney he offered to prove that the only reason Darcy was singled out and prosecuted, although he possessed all the qualifications of an elector, was that he was a communist. Some color is given to these charges of discrimination when it is remembered that the prosecuting officials extradited this defendant from Pennsylvania in order to try him on this indictment, when, according to the offers of proof, there were then thousands of affidavits of registration on file in San Francisco containing false statements similar to the one here involved. None of these local false registrants, according to the offer of proof, was ever prosecuted.
It is, of course, the law that a person committing a crime cannot claim an unlawful discrimination upon a mere showing that other persons or classes of persons have committed the same offense and have not been prosecuted therefor. The cases cited in the majority opinion clearly and properly establish that principle. But where that fact is shown plus an arbitrary,- intentional and deliberate discriminatory intent on the part of the law enforcement officers, a different problem is *359presented. In such case, an accused has made out a ease of denial of equal protection. The principle was stated in Tick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220], where an ordinance admittedly fair on its face and making a violation a crime was so administered that only Chinese were prosecuted under it. The court (p. 373) stated: “. . . the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. . . . The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution.” The principle of this case has been reaffirmed in Williams v. Mississippi, 170 U. S. 213 [18 S.Ct. 583, 42 L.Ed. 1012]; Ah Sin v. Wittman, 198 U.S. 500 [25 S.Ct. 756, 49 L.Ed. 1142]; Mackay Telegraph & Co. v. Little Rock, 250 U.S. 94 [39 S.Ct. 428, 63 L.Ed. 863],
The rule of these cases is sound. The basic principle of our system of government is that all people, including the weak, the outnumbered and the nonconformist, stand before the courts on a basis of equality with all other litigants. If the criminal processes can be deliberately and intentionally abused to prosecute a particular individual because he is a communist, not because of what he has done, but because of his beliefs, the fundamental cause for which we are now fighting a great war becomes a hollow mockery. The protecting *360arm of the Fourteenth Amendment prohibits prosecutions based on prejudice and persecution. Mr. Justice Black expressed this thought in Chambers v. Florida, 309 U.S. 227 [60 S.Ct. 472, 84 L.Ed. 716], where, in reference to the discriminatory practices there involved, he stated (p. 240) : “We are not impressed by the argument that law enforcement 'methods such as those under review are necessary to uphold our laws. The Constitution proscribes such lawless means irrespective of the end. And this argument flouts the basic principle that all people must stand on ■ an equality before the bar of justice in every American court. Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution—of whatever race, creed or persuasion.” It is much better for society that an accused should go free, than for our criminal processes to be polluted by prosecutions founded on prejudice against and hatred for the political beliefs of the accused.
This defendant was precluded from proving the very facts which, if proved to the satisfaction of a jury, would have demonstrated that he had been deprived of equal protection. The offers of proof here went to both elements required under the law. This error justifies a reversal.
It is my belief that, as a matter of law, the evidence is insufficient to sustain the conviction of perjury. Moreover, even if the evidence is technically sufficient, reversible error was committed in excluding the very evidence upon which the accused was dependent to prove a violation of his constitutional rights.
Appellant’s petition for a hearing by the Supreme Court was denied July 22, 1943. Gibson, C. J., Traynor, J., and Schauer, J., voted for a hearing.