123 P. 984 | Cal. Ct. App. | 1912
Petitioner was convicted upon a complaint filed in the justice's court charging him with selling and giving to a minor under the age of eighteen years an intoxicating drink in violation of section 397b of the Penal Code. The verdict of the jury finding him guilty was rendered on November 23, 1910, and the time for rendering judgment was, in the absence of any waiver on the part of petitioner, postponed to November 26th, at which time, over his objection, judgment was rendered. Petitioner appealed to the superior court which, on account of the failure of the justice to pronounce judgment within two days after the verdict, granted a new trial, upon which he was again convicted. He bases his right to be discharged from custody upon the grounds: First, that the complaint failed to state an offense; and, second, that jurisdiction of defendant and the subject matter of the action was lost by reason of the justice failing to pronounce judgment within the time fixed therefor by section
The alleged vice of the complaint is due to the fact that it did not negative the exception contained in section 397b. This section provides: "Every person who sells, gives or delivers to any minor child, . . . under the age of eighteen years, any intoxicating drink in any quantity whatsoever, . . . shall be guilty of a misdemeanor, . . .; provided, that this section shall not apply to the parents of such children, or to guardians of their wards." The offense described in the enactment is the sale, etc., of intoxicating drinks to minors under the age of eighteen years. The language of the exception providing that the offense specified shall not apply to parents or guardians of such minors in no wise purports to describe the offense specified. "When an exception is stated in the statute, it is not necessary to negative such exception, unless it is a constituent part of the definition of the offense. . . . When the exception is not a part of the definition of the offense, and in this way does not therefore become a part of the enacting clause, it is a matter of defense." (Territory v. Burns,
As to the second point, the rendition of judgment after the lapse of two days succeeding the verdict was not an act in excess of jurisdiction, but merely an error in procedure, which defendant was entitled to have reviewed on appeal and a new trial granted on account of such error. Section
The writ is denied and petitioner remanded to custody.
Allen, P. J., and James, J., concurred. *642