Ex parte Foley

McKjnstry, J.: The petitioner was brought before the Court in Bank, upon [509]habeas corpus, and after hearing was remanded to custody. He prayed to be discharged on the ground that the judgment under which he was held was invalid, for the reason that the complaint on which he was tried charged no offense.

The complaint charges that “ defendant [petitioner], on the nineteenth day of October, 1880, at Watsonville, in the County, of Santa Cruz, State of California, committed a misdemeanor, as follows, to wit: The said T. K. Foley, at the time and place aforesaid, did use vulgar and indecent language within the hearing of children, in a loud and boisterous manner, willfully and unlawfully, all of which is contrary to the form of the statute,” etc.

Section 415 of the Penal Code is as follows: “Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse-race, either for a wager or amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction, shall be punished by a fine not exceeding $200> or by imprisonment in the county jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court.”

It was urged at the argument that the judgment was void because the language alleged to be profane and obscene was not recited in the complaint. It was also urged that the locus is a material element in the offense created by the statute; "that the offense which the complaint attempts to charge can only be committed on the public streets of an “ unincorporated town.” Counsel for petitioner relied on Ex parte Kearney, 55 Cal. 212, as authority for both these positions.

In Ex parte Kearney, 55 Cal.212,this Court (after suggesting objections to the validity of a certain ordinance) held that the petitioner was entitled to his discharge, because it affirmatively appeared upon the record of the Police Court that he [510]