Ex Parte Mauch

66 P. 734 | Cal. | 1901

William Mauch was convicted in the police court of the city of Marysville upon a charge of cruelty to an animal, committed, as the complaint charged, by willfully and unlawfully cruelly beating and torturing a certain dog named "Sport," etc.

It is claimed that his imprisonment upon said conviction is unlawful because the complaint fails to charge that the act was malicious, and that malice is an essential ingredient of the crime. It is true that the beating and torturing must be malicious, in order to constitute the offense (Pen. Code, sec. 597), but willful and unlawful cruelty is malice. It is not necessary to lay the charge in the very language of the statute. It is enough to use language of equivalent import.

It is further contended that the judgment of conviction is void because there is no such court as the police court in the city of Marysville.

Marysville was reincorporated by an act approved March 7, 1876. (Stats. 1875-76, p. 149.) By this act it was provided, (sec. 6) that the mayor and common council should elect all subordinate officers of the city, including police judge; (sec. 11) that the assessor should be ex officio clerk of the police court; and (sec. 13) that the police judge should exercise all the powers granted him by the Political Code, except the provisions of section 4425 (which empowers police judges to appoint clerks). But the act does not, in express terms, create a police court. In 1889 an act was passed to establish a police court in the city of Marysville. (Stats. 1889, p. 214.) The petitioner contends that the court depends for its existence on this act alone, and that the act is unconstitutional and void.

We do not deem it necessary to consider the objections to the validity of the act of 1889. Conceding it to be invalid, the police court was lawfully established by the act of 1876. There is no question that the legislature had the power to create a police court by the act to reincorporate the city, and the only question is, whether the intention to do so is clearly manifested by the terms of the act.

We think it is. A police judge implies a police court (Quigg v.Evans, 121 Cal. 546), and the act itself assumes the existence of the court, in the provision making the assessor, ex officio, its clerk. The jurisdiction of the court is defined by the Political Code (secs. 4424-4432), and includes the offense of which the prisoner was convicted.

The prisoner is remanded.

McFarland, J., Harrison, J., and Temple, J., concurred.