In Re Sears

THOMPSON, J.

The petitioner seeks to obtain his discharge from custody by means of a writ of

habeas corpus

on the ground that the statute under which he was convicted of wilfully and fraudulently failing to pay the wages of an employee upon his discharge, is unconstitutional, and because the complaint fails to state a public offense.

The same matter was previously determined adversely to the petitioner upon a petition for a writ of

certiorari. (Sears

v.

Superior Court,

133 Cal. App. 704 [24 Pac. (2d) 842].) The facts are more fully related in our opinion which was filed in that proceeding. The petitioner and William H. Warwick were jointly charged in a complaint which was filed in the Justice’s Court of Angels Township, Calaveras County, with violating the provisions of the act regulating the payment of wages by private employers. (Stats. 1919, p. 294, and amendments thereto; 2 Deering’s Gen. Laws of 1931, p. 2241,' Act 4743.) The complaint contained two counts. The first count charges that while the defendants were acting as officers of the Calaveras Gold Mining Company they did “employ two or more workers in and about the mining operations . . . without maintaining pay days, . . . and without paying said workers in full for their services semi-monthly as required by sections 2 and 4 of the said law”. The second count charges that while the de-

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' fendants were acting as such officers of the Calaveras Central Gold Mining Company, “and being then and there the employers of O. H. Lagne, did then and there discharge said employee

from the service of said corporation,

and did then and there,

with intent

to annoy, harass, oppress, hinder, delay and

defraud

the "said employee, wilfully and unlawfully refuse to pay the said employee the wages then and there due the said employee . . . having the ability to pay the same, all in violation of the provisions of Sections 1 and 6 of the said law”. The defendants were convicted and fined separately under each of the counts of the complaint with the alternative penalty of one day of imprisonment for each two dollars of said fine, in the event of nonpayment thereof. On appeal to the superior court the judgment was affirmed. After an unsuccessful effort to annul the judgment upon a petition for a writ of