187 P. 1077 | Cal. Ct. App. | 1920
Petitioner was convicted in the justice court of Scotia Township, county of Humboldt, California, on the alleged charge of gambling, and was sentenced to pay a fine of one hundred dollars, and, in default of payment, to be imprisoned in the county jail of said county of Humboldt one day for every dollar of the fine. The charging part of the said complaint was as follows: "Personally appeared before me, this 22d day of August, 1919, S. Catargli of Wildwood in the County of Humboldt, who, first being duly sworn, complains and says: That said N. Capanna on the 17th day of August, 1919, at Wildwood in said county of Humboldt, State of California, did then and there knowingly and unlawfully conduct a percentage and banking gambling game — Secchinetta." [1] The point upon which petitioner relies is that said complaint utterly fails to state any offense known to the law. Being so defective, it is the claim of petitioner that he is entitled to his discharge uponhabeas corpus. The nature and scope of this writ have been considered often by the courts and it is unnecessary to treat the subject with any degree of elaboration. It is sufficient to refer to the well-considered case of In re Avdalas,
[2] It is obvious that the proceeding in said justice court was taken agailst petitioner by virtue of section
In Ex parte Greenall, supra, the supreme court distinguished between a case brought in the superior court and one brought in a justice court, and the court held that "in order to bring any person" within the provisions of the act of March 14, 1907, making it a misdemeanor for any person to practice or attempt to practice or advertise or hold himself out as practicing medicine or surgery, or osteopathy, or any other system or mode of treating the sick or afflicted, in this state, without having, at the time of so doing, a valid, unrevoked certificate, as provided in the act, it must appear *504 that he is engaged in the line of work as a business or holding himself out as being so engaged. The court further held that the complaint charging that the defendant "did willfully and unlawfully treat the sick or afflicted by practicing the system or mode known as chiropractic without having at the time of so practicing a valid unrevoked certificate from the board of medical examiners of the state of California entitling him so to do as provided by an act of the legislature of the state of California, entitled," etc., did not show the facts required to constitute a crime and was not sufficient to support a conviction, and that the defendant was entitled to his discharge upon habeas corpus.
In the Correa case, supra, the defendant was prosecuted in the justice court of Anaheim Township, in Orange County, for a misdemeanor charged to have been committed under section
Following the rule enunciated and applied by the foregoing cases we must hold that the petitioner herein was not charged with any offense and is, therefore, entitled to be released. It is ordered that petitioner be discharged from custody.
Ellison, P. J., pro tem., and Hart, 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 18, 1920, on the authority of In reZany,
All the Justices concurred. *505