People v. Ellena

SHAW, J.

Upon an information charging Mm therewith, defendant was convicted of the violation of an ordinance of

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San Bernardino County which made it unlawful for any person within said county, outside of municipal corporations, to sell, offer for sale, deliver, or give to another intoxicating liquor of any kind or in any quantity whatsoever, subject to certain exceptions not here involved. The ordinance defined the term “intoxicating liquor,” as.used therein, to include any and all spirituous, vinous, and malt liquors, without regard to alcoholic content; and further provides that any person violating any of the provisions of the ordinance shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding $600, or by imprisonment in the county jail of San Bernardino County for not more than seven months, or be punished by both such fine and imprisonment.

Upon trial defendant was convicted, as charged in the information, of the sale and delivery of wine, contrary to the provisions of the ordinance, and thereupon it was adjudged “that the said John Ellena be punished by payment of a fine of $600 and, in default thereof, by imprisonment in the county jail of the county of San Bernardino, one day for each $2 of said fine.” From this judgment he has appealed.

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His first contention is that the information fails to state facts sufficient to constitute a public offense. While, due to typographical errors or otherwise, the information is defective, nevertheless it is clearly sufficient to apprise defendant of the fact that he was charged with a violation of the ordinance in that he, at a specified time and place, had sold, furnished, and delivered intoxicating liquor, to wit, wine, contrary to the ordinance, the number and title of which was stated; all of which it is alleged in the information was contrary to the form, force and effect of

the statute

in such cases made and provided. Of course, the offense charged .was not contrary to the statute, but in violation of the ordinance. In no event could the alleged defects in the information have misled defendant or have resulted in any prejudice to him. Hence, under section 4% of article VI of the constitution, we must hold appellant’s contention upon this point without merit.