In Re Ajuria

FINCH, P. J.

The petitioners were convicted of the violation of an ordinance of the city of Marysville and sentenced to pay fines and to be imprisoned in the county jail. They herein seek their discharge upon a writ of

habeas corpus.

The petition does not set out the terms of the ordinance or state the offense of which the petitioners were convicted other than that it was a misdemeanor. It may be inferred from the facts alleged, however, that they were found guilty of having wine in their possession contrary to the terms of the ordinance.

It is alleged that the police officers unlawfully and without a search-warrant entered in the night-time and searched the defendants’ premises and discovered there a barrel containing several gallons of wine; that thereupon, without a warrant and without a complaint having been filed charging the defendants with the- commission of any offense, the officers arrested them and took them to the police station; that three days later a complaint was filed charging the defendants with the misdemeanor of which they were later convicted; that no warrant of arrest was ever issued out of the police court or served upon the defendants, and that by reason of the failure to so issue and serve a warrant the police court did not acquire jurisdiction of the persons of defendants; and that thereafter the defendants were tried and convicted. In his points and authorities, counsel for petitioners states that on their arrest they were released on bail, but the petition does not so allege. It does not appear that petitioners made any objection to the jurisdiction of the police court at any stage of the proceedings. There can be no contention that the court did not have jurisdiction of the offense charged. Jurisdiction of the offense cannot be acquired by consent, but “everywhere jurisdiction of the person of the defendant may be acquired by consent of the accused or by waiver of objections. If he fail to make his objection in time, he will be deemed to have waived it. He cannot, for instance, raise such a question for the first time in the appellate court.” (8 R. C. L. 96; 16 C. J. 174.)

[669]

It is contended that the officers were not authorized to make the arrest without a warrant. A peace officer may make an arrest without a warrant for a public offense committed in his presence. The unlawful possession of alcoholic liquors is a continuing offense. The defendants were in possession of the wine in the immediate presence of the officers. It is not perceived why the officers were not as fully authorized to make the arrest without a warrant as they would have been had they seen the defendants on a street corner with the wine in their possession.