dissenting.
I dissent from the majority opinion herein.
This case involves the second count of a criminal information filed against the defendant Nakamura. ' The count charged that Nakamura, being an unnaturalized *266foreign-barn resident of Delta county, Colorado, had unlawful possession of “one shotgun, for the purpose of hunting wild game. ’ ’
The. statute of 1919, under which the prosecution was had, provides (C. L. ’21, §6882) that “it shall be unlawful for any unnaturalized foreign-born resident to hunt for or capture or kill, in this state, any wild bird or animal, either game or otherwise, of any description, excepting in defense of persons or property; and to that end it shall be unlawful for any unnaturalized foreign-born resident, within this state, to either own or be possessed of a shotgun or rifle of any make, or a pistol or firearm of any kind.”
A motion was made by the defendant to quash the count on the ground that the criminal offense stated is charged under a statute which is alleged to be in violation of sections 13 and 27 of article 2 of the Colorado Constitution. These sections are as follows: “Sec. 13. Eight to bear arms. — That the right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. ” “ Sec. 27. Property rights of aliens. — Aliens, who are or may hereafter become bona fide residents of this state, may acquire, inherit, possess, enjoy and dispose of property, real and personal, as native born citizens.”
The trial court sustained the defendant’s motion and quashed the questioned count. In doing so, it apparently assumed that the defendant’s shotgun is necessarily included among arms which, under section 13 of article 2, he has “the right * * * to keep and bear” “in defense of his home, person and property.” Whether the shotgun in this particular case was such a weapon, depends upon the facts. If the possession was solely “for the purpose, of hunting wild game,” as the information alleges, it was manifestly not in defense of home, *267person or property. If on the other hand snch was not the sole purpose, but the purpose was. also to keep and bear the arms for defense within the meaning of our Constitution, then this fact might entitle the defendant to an acquittal. The fact might be, however, that an alien is possessed of a veritable armory of weapons, or at least of an ample supply for defense, and that a shotgun might be kept and used by him merely as a convenient means of violating the game statute under consideration, or even for the purpose of subverting the government itself.
A court ought not to presume that the legislature intended to interfere with the constitutional rights of the defendant. The legislature recognized the importance of avoiding such interference, as is shown by the express exception inserted in the act itself (“excepting in defense, of persons or property”). A presumption exists as usual that the act of the legislature is constitutional, and such presumption continues until the statute, is proved unconstitutional beyond a reasonable doubt.
It is earnestly contended by the defendant that the count is bad because it does not negative the exception referred to. An exception need not be pleaded. It is a matter of defense. The defendant’s remedy is to introduce evidence, if he has any, tending to establish either that he is within the express statutory exception or that the circumstances disclose, he is within the protection of the constitutional provision, which must of course be read into, and in connection with, the statute. See People v. Williams, 61 Colo. 11, 19, 155 Pac. 323, 325, and cases there cited.
I respectfully suggest that the judgment should be reversed and the case remanded with directions to vacate the order quashing the second count of the information, overrule the motion to quash this count, and proceed with arraignment and trial in the regular course of criminal procedure.
Mr. Justice Burke concurs in this opinion.