Ex Parte Upson

[532]

COOPER, P. J.

The petitioner alleges that he is restrained of his liberty by the chief of police of the city of Oakland under and by virtue of a judgment duly given and made by the police court of said city, which judgment was entered upon a plea of “Guilty” to the charge set forth in a complaint in writing, which complaint is annexed to the petition herein. Said complaint states that the prisoner, in the city of Oakland, on the fourteenth day of August, 19Q7, did maliciously, with intent to injure the integrity and good name of one W. Parker Lyon, publish “certain lewd, obscene, indecent and defamatory pictures” of said Lyon, “then and there, well knowing the same to be lewd, indecent and false, contrary to the statute,” etc.

It is claimed that the facts stated in the complaint are not sufficient to constitute a public offense, and hence that the petitioner should be discharged on

habeas corpus.

If the complaint is defective in not showing in what way the pictures were lewd or obscene or indecent the prisoner could have raised the question by demurrer to the complaint in the police court. It will be presumed that the court would have ruled correctly upon the point, and if it did not do so the prisoner, could have appealed to the superior court of the county in the regular manner provided by law, and there have had the matter determined. Not having done so, having pleaded guilty to the offense charged in the complaint, we will not now on

habeas corpus

examine as to whether or not the facts were as fully set out in the complaint as they should have been if tested by demurrer, or by appeal in the ordinary way. The complaint purported to and attempted to state an offense of which the police court had jurisdiction. That is sufficient when tested by the writ of

habeas corpus

after judgment.

(Ex parte Ruef,

150 Cal. 665, [89 Pac. 605] ;

Ex parte Mogensen,