In Re Leonardino

BURNETT, J.

Petitioner was charged hy a complaint filed in the justice court of Yreka township, Siskiyou county, with having “willfully and unlawfully engaged in and carried on the business of selling spirituous, malt or fermented liquor or wines, without having first taken out and procured the county license” required hy a certain ordinance of said Siskiyou county.

The .petitioner was regularly tried in said justice court and convicted of the offense charged. He moved for a new trial in said court, which was denied. He then appealed to the superior court upon a statement of the case and the judgment of the justice court was affirmed.

There is no contention that the said complaint does not state facts sufficient to constitute a public offense. The regularity of the proceedings before the justice or the superior court is not called in question. .No claim is made that the said ordinance was not properly passed or that it is not within the scope of the legislative power of said hoard of supervisors.

It is insisted, however, that it “is a police regulation measure and applies, and can he held to apply, solely to the business of retailing wines, liquors and beers at a fixed place of business, such as a saloon or tippling place and does not apply to and does not include the sale or business of selling such articles at wholesale.” Petitioner goes one step further and argues that the evidence taken at the trial showed without conflict that he was engaged in the wholesale business, and therefore that he had not violated the provisions of the ordinance. The whole position of petitioner is therefore summed up in the proposition that he was shown to he not guilty of the offense charged in the complaint; and for the

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reason that there was an entire failure of proof of his guilt he seeks to be discharged through the medium of the writ of

habeas corpus.

Assuming that wholesalers are not included within the provisions of said ordinance, the case, then, from petitioner’s standpoint is no different' in principle from what it would be had he been charged with any other offense known to the law, battery, for instance, regularly tried and convicted, and had petitioned to be discharged on the ground that the evidence showed that he was not guilty. To grant this, however, would be to wrest the writ of