People v. Gibbs

LENNON, P. J.

The defendant in this case in an information filed in the superior court of the city and county'of San Francisco was charged with maintaining a public nuisance, in violation of the provisions of section 373a of the Penal Code.

The defendant demurred to the information upon the ground that the offense charged was a misdemeanor which the superior court did not have original jurisdiction to hear and determine. The demurrer was allowed, upon the ground stated, and the people have appealed. The demurrer was well taken and properly allowed. The police and justices’ courts, have exclusive jurisdiction over all misdemeanors punishable by a fine not to exceed five hundred dollars or by imprisonment not to exceed six months; and, unless expressly provided to the contrary, every offense declared to be a misdemeanor is punishable by a fine not to exceed five hundred dollars or by imprisonment not to exceed six months. (Pen. Code, secs. 19, 1425.)

Section 373a of the Penal Code, under which the defendant was informed against, expressly declares the offense defined therein to be a misdemeanor, but does not prescribe the penalty therefor. It follows necessarily that the offense charged against the defendant falls within the category of misdemeanors which are triable only in the police or justices’ courts. The information in the present case cannot be sustained upon the theory that it charges an indictable misdemeanor. The contention of the people in this behalf is based upon the assumption that section 373a of the Penal Code, under which the information was drawn, may be rightfully read "and construed in conjunction with the provisions of section 377 of the Penal Code. This cannot, be done. The latter section

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undoubtedly deals only with violations of health laws relating to registrations of deaths and the disposition of human remains. Clearly the provisions of that section have no express or implied relation to the offense defined by section 373a. Section 377 was intended to penalize only the willful omission by any person charged with a duty relating to the registration of deaths to do certain things concerning such registration and the burial of the dead. True, subdivision 5 of that section in general terms declares that the willful violation of any of the laws of this state relating to the preservation of the public health constitutes a misdemeanor which is, “unless a different punishment ... is prescribed, . . . punishable by imprisonment in the county jail not exceeding one year or by fine not exceeding one thousand dollars”; but subdivision 5 of the section under consideration cannot be construed as a statute separate and apart from that which appears before in the section itself. The code section in question deals with but a single subject; and therefore must be construed in its entirety in order to arrive at a correct conclusion concerning its intent and purpose. When so construed, it is manifest that the violation generally referred to in subdivision 5 relates to, is covered by, and must be controlled by the provisions of the introductory paragraph to the entire section. So construed, it is evident that subdivision 5 must be understood as applying only to those persons who are charged by law with a duty relating to the registration of deaths, etc.