In re Avdalas

The petitioner was convicted by a jury in the justice’s court of township No. 9, in Placer county, upon a complaint purporting to charge him with a misdemeanor under the provisions of section 537 of the Penal Code, and was thereupon sentenced to pay a fine of sixty dollars, or, in default of the payment thereof, to be confined in the county jail of said county at the rate of one day for each dollar of said fine.

That portion of the provisions of said section within which it was sought, by the charging part of the complaint, to bring the alleged act of the petitioner, reads as follows: “Any person who obtains any food or accommodation at an hotel, inn, restaurant, boarding-house or lodging-house without paying therefor, with intent to defraud the proprietor or manager thereof, ... is guilty of a misdemeanor.”

It is claimed by the petitioner that the complaint upon which he was convicted does not state a public offense under section 537 of the Penal Code, supra, and that, therefore, the court was without jurisdiction to try him upon the purported charge and that he is now restrained of his liberty under a judgment which is absolutely void.

The charging part of the complaint is in the following language : “The said defendant, at the time and place last aforesaid did willfully and unlawfully defraud the said Theros Theros, keeper of a boarding-house, by leaving and going away from the said boarding-house without first paying his bill, with deliberate intent to defraud the said Theros Theros out of the amount due thereon, to wit: Forty-five dollars. ’ ’

It was admitted at the hearing of this petition that the petitioner had taken an appeal from the judgment of the justice’s court to the superior court of Placer county, but that said appeal is still pending.

It is scarcely necessary to remark that the complaint upon which the petitioner was convicted could not for a moment be regarded as sufficient as an accusatory pleading if tested by a demurrer. It is undoubtedly obnoxious to every criticism to which it is subjected by counsel for petitioner. But the question here is, how far may an inquiry be extended in a proceeding upon habeas corpus in a case like the one here, where, it is manifestly clear, from the averments of the com

In the case of Ex parte Ruef, on Habeas Corpus, 150 Cal. 665 , [ 89 Pac. 605 ], the claim, on behalf of the petitioner, that the indictment failed to state a public offense was rejected in that proceeding, the court saying: “We think the true rule is that where an indictment purports or attempts to state an offense of a kind of which the court assuming to proceed has jurisdiction the question whether the facts charged are sufficient to constitute an offense of that kind will not be examined into on habeas corpus. Here the indictments clearly attempt to charge extortion, a crime defined by section 518, et seq., of the Penal Code, and within the jurisdiction of the superior court'.” This appears to be only a restatement of the rule as it was applied to cases of misdemeanor in early cases decided by the supreme court. (Ex parte Maier, 103 Cal. 476 , [ 42 Am. St. Rep. 129 , 37 Pac. 402 ]; Ex parte Williams, 121 Cal. 328 , [ 53 Pac. 706 ].) In the last-mentioned case, in which the petitioner, as is the case here, was restrained of his liberty for an alleged violation of section 537 of the Penal Code, it is said: “While the inquiry on habeas corpus may extend to the question whether the complaint or information charges an offense known to the law, since this objection goes to the question of jurisdiction, the proceeding may not be made to subserve the office of a demurrer; and if the facts alleged squint at a substantive statement of the offense, (italics mine) no matter how defectively or in artificially they may be stated, or however confused and beclouded they may be rendered through intermingling them with immaterial or unnecessary averments, the writ will not lie”; citing Ex parte Whitaker, 43 Ala. 323 , and Matter of Prime, 1 Barb. (N. Y.) 340.

But my attention is called to the recent case of Ex parte Greenall, 153 Cal. 767 , [ 96 Pac. 804 ], in which the court appears to extend the doctrine as to misdemeanors and accords to it much wider scope than it has ever before been given in any other case which I have yet seen, as I understand the

I frankly confess that I am unable to perceive any logical ground for drawing a distinction between felony and misdemeanor cases, where, in either case, the accusatory document fails to state facts sufficient to show the commission of a public offense known to the law, unless it is intended to arbitrarily declare that, because the law furnishes no method by which misdemeanor cases may be carried to the higher courts for the correction of errors, the writ of hateas corpus may be extended in its scope, in such cases, and made to perform practically the office of a writ of error. I see no serious objection to thus enlarging the scope of the writ, in which event there would then appear a valid reason for the distinction which appears to have been established in the Greenall case.

Of course, it is only a trite declaration to say that the sole purpose of the writ of hateas corpus is to try and determine

It does not definitely appear from the opinion in the Green-all case, supra, that the court intends to hold that the writ of habeas corpus, as to misdemeanors of which justices’ and police courts have jurisdiction, shall serve the purpose of a writ or proceeding for the correction of errors, and, therefore, I agree with the court in the case of Ex parte Williams, 121 Cal. 328 , [ 53 Pac. 706 ], that the writ is not to be made to subserve the office of a demurrer.

Section 537 of the Penal Code is a valid statute. (Ex parte Ruffin, 119 Cal. 487 , [ 51 Pac. 862 ], and Ex parte Williams, 121 Cal. 328 , [ 53 Pac. 706 ].) This court may, of course, take judicial notice of its provisions and that it contains several different clauses describing as many different acts, any one of which constitutes a public offense of which a justice’s court has jurisdiction.

As seen, it provides, inter alia, that any person who obtains any food or accommodation at an hotel, inn, restaurant, boarding-house or lodging-house, without paying therefor, with intent to defraud the proprietor or manager thereof, may be punished as for a misdemeanor.

The complaint here, while defectively and inartifieially drawn, and could not for an instant, as before stated, resist the force of a demurrer, nevertheless clearly discloses an attempt at charging an offense under that section. It cannot be said, without challenging common intelligence, that a mere reading of the document will not at once indicate that it was sought therein to charge the petitioner with the violation of the first clause of section 537 of the Penal Code.

Counsel for petitioner, criticising the complaint as though its sufficiency were being tested by a special demurrer, declares that it cannot be ascertained from its allegations whether the alleged “bill” was incurred for “food or accommodations at any hotel, inn, ... or boarding-house,” etc., and whether the “defendant defrauded the proprietor or manager of any hotel,” etc. In support of the first stated

I think the second objection to the complaint is equally as untenable in this proceeding.

The statute uses the words “proprietor or manager” of an inn, hotel, or boarding-house, whereas the complaint alleges that the complaining witness is “keeper of a boarding-house,” and counsel insists that this deviation from the language of the statute is fatal to the jurisdiction of the court. It is true that, as a general rule, in charging a person with a crime, if the allegations of the accusatory pleading are substantially in the language of the statute under which the charge is made it is sufficient. But this rule does not mean that the language of the statute' should be literally followed. In some eases a

The meaning of the word “keeper” as employed in the complaint is not so obscure or indefinite as to compel a court to declare, in a proceeding of this character, that, by its use in lieu of either of the words used in the statute as descriptive of the persons who may be defrauded, the want of jurisdiction in the court of the person of the petitioner is made to appear. In truth, the word has a broader meaning than either the word “proprietor” or “manager,” as employed in the statute, for it may include either or both. According to Webster, “keeper” is “one who has the care, custody or superintendence of anything,” or “one who has or holds possession of anything.” Colloquially the term “saloon-keeper” is generally understood to mean the proprietor of a saloon. I think the phrase, “keeper of a boarding-house” has, commonly, the same meaning. If the complaint had alleged that the complainant was “the owner of a boarding-house, ” counsel would surely not, on demurrer, contend that the language-of the statute had not been substantially followed, the complaint being otherwise sufficient, although the word “owner” is not used in the section. I entertain no doubt that the-word “keeper” as used in the complaint, so far as that part of the document is concerned, with sufficient clearness, at least for the purposes of this proceeding, indicates that the party who is alleged to have been defrauded by the petitioner is either proprietor or manager, or both, of the boardinghouse referred to in the complaint.

The petitioner, as seen, has preserved the last remedy available to him in the ordinary course of law, and I do not hesitate to venture the opinion that had he pressed his appeal in the superior court there would have been no necessity for seeking his summary discharge through this proceeding.

For the reasons stated in the foregoing, the alternative writ is discharged and the petitioner remanded.

Burnett, J., and Chipman, P. J., concurred.