In Re Gohlke

KNIGHT, J.

Petitioner, by this proceeding in

habeas corpus,

seeks to be discharged from the custody of the sheriff of Fresno County, by whom he is detained under a commitment issued out of the police court of the city of Fresno, following the making of an order holding him to answer for trial before the superior court for “the offense of felony, to wit, driving automobile without owner’s consent.” The charge against petitioner is based upon section 146 of the Motor Vehicle Act of California (Stats. 1923, p. 564), which in part reads as follows: “Any person who shall drive a vehicle not his own without the consent of the owner thereof and in the absence of the owner and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, shall be deemed guilty of a felony.” The Motor Vehicle Act omits, however, to prescribe any penalty as a punishment for the commission of the felony therein declared, and upon that ground petitioner contends that the acts denounced by said section do not constitute a crime or public offense.

It may be conceded, as petitioner claims, that a description, definition, and denouncement of the acts necessary to constitute a crime do not make the commission of such acts a crime unless a punishment be annexed, for a punishment is as necessary to constitute a crime as its exact definition

(People

v.

McNulty,

93 Cal. 427 [26 Pac. 597, 29 Pac.

61]);

and, furthermore, it may be admitted that under the rule stated in the case of

In re Isch,

174 Cal. 180 [162 Pac. 1026], cited by petitioner, the'penalty provided for in section 18 of the Penal Code, which provides that “Except in cases where a different punishment is prescribed by this code, every offense declared to be a felony is punishable by imprisonment in the state prison, not exceeding five years,” may not be invoked to supply the omission complained of,

[538]