Treppa v. Justice's Court

California Court of Appeal Oct 11, 1934 No. Civ. 5239Published

Before: Pullen

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Holding. The court held that a criminal complaint charging a defendant with furnishing liquor to an Indian under Penal Code section 397 must allege that the liquor was intoxicating in fact, as the court cannot judicially define beer with low alcoholic content as intoxicating. Because the complaint failed to allege the intoxicating quality of the beverage, it stated no public offense, and the writ of prohibition was granted.

Issues

Whether a complaint charging a violation of Penal Code section 397 is sufficient without an allegation that the liquor furnished was intoxicating.
Whether the court has the power to define beer containing less than 3.2 percent alcohol as intoxicating as a matter of law.
Whether a writ of prohibition is the appropriate remedy when a justice's court complaint fails to state a public offense.

Disposition. granted

Quotations verified verbatim against the opinion

“We are therefore of the opinion that the complaint before us states no public offense, and the writ prayed for should be granted, and it is so ordered.”

PULLEN, P. J.

It appears from the petition for a writ of prohibition that Arthur Treppa is charged by an information, filed in the Justice’s Court of Township Number Three

[375]

of Lake County, with having sold liquor to one Byron Augustine, a full-blooded Indian.

This information is purported to be based upon the provisions of section 397 of the Penal Code, the portion material to this decision being in the following language:

“Every person who sells or furnishes . . . intoxicating liquors ... to any Indian of whole or mixed blood, ... is guilty of a misdemeanor.”

The force of petitioner’s objection will be seen in comparing the allegations of the complaint with that of the language in the section just quoted; the complaint alleging “that said defendant Arthur Treppa, at said time and place did unlawfully furnish to Byron Augustine, liquor, to-wit: beer containing more than one-half of one per cent and not more than three and two-tenths per cent of alcohol by volume, the said Byron Augustine being then and there an Indian of the whole blood”, which omits the direct allegation found in the statute of the intoxicating quality of the drink.

It is urged that the complaint therefore does not state any offense known to the law, and the trial court being about to exercise jurisdiction in an unauthorized proceeding, creates a situation wherein prohibition is the proper remedy.

We were at first disposed to the opinion that the justice’s court had jurisdiction to proceed and that if error were committed petitioner still had a plain and speedy remedy at law adequate in the premises. Inasmuch, however, as the only right of a defendant in the justice’s court, according to section 1429 of the Penal Code, is to enter a plea of guilty or not guilty, it is apparent petitioner has no opportunity to challenge the sufficiency of the complaint prior to trial and the remedy is not, under these circumstances, adequate. In

Ex parte Hayter,

16 Cal. App. 211 [116 Pac. 370], this court, speaking through Mr. Justice Hart, said:

Treppa v. Justice's Court

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PULLEN, P. J.

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