214 P. 521 | Cal. Ct. App. | 1923
This is a petition for writ of habeas corpus. The complaint, in so far as it is material here, reads as follows:
"Personally appeared before me this 11th day of August, 1922, George Hudson, of Bakersfield, in the County of *227 Kern, State of California, who being first duly sworn complains and accuses M. J. Bergen of the crime of Misdemeanor, to wit, carrying concealed weapon, committed as follows: That said M. J. Bergen, on or about the 10th day of August, 1922, within the corporate limits of the said city of Bakersfield, County of Kern, State of California, did then and there willfully and unlawfully conceal upon his person one Iver-Johnson 38 Pistol, without a license to carry such firearm." Petitioner contends that this complaint does not state facts sufficient to constitute a public offense. The language of the section of the statute (Stats. 1917, p. 221) under which the charge is made reads as follows:
"Subdivision 3. Carrying Firearms Without License, Misdemeanor. 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 6 of this Act, shall be guilty of a misdemeanor."
Section 1426 of the Penal Code requires that the complaint through which an action for a public offense is begun must set forth "the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint."
[1] It seems apparent that in any accusation the name given the offense by the pleader is separate from the charging part of the instrument. This was held to be the rule in People v.Cuddihi,
The technical meaning of the word "carry" seems not to have been given extended consideration in the cases involving this class of public offense. Webster's dictionary defines it as "to act as bearer; to convey anything; as to fetch and carry. To have or exert propulsive power." At common law the offense of carrying concealed weapons involved riding or going about and not merely holding or possessing a weapon. (State v. Huntley,
The use of the word "carry" in an indictment conveys to a defendant the thought of going about armed, as well as the further proposition that he is charged with transporting the weapon with intent to use it as such. (State v. Larkin, 24 Mo. App. 410; State v. Murray, 39 Mo. App. 127; State v.Gilbert,
But it is said that from the fact that the complaint alleges that petitioner was without a license "to carry" such firearm, it might be understood that the pleader intended to charge the defendant with having carried as well as concealed the pistol. This would be overstraining even the "squint" doctrine announced in In re Avdalas,
The complaint in the Matter of the Application of Winston,
The petitioner is discharged.
Finlayson, P. J., and Works, J., concurred.