In re Clark

PULLEN, P. J. Petitioner was convicted in the Police Court of the City of Vallejo on a complaint charging that [575]she did “on or about the 8th day of October, A. D. 1940, at and in the City of Vallejo . . . then and there wilfully and unlawfully steal, take and attempt to carry away from the immediate possession of the lawful owner thereof, merchandise of the value of sixteen dollars. ’ ’ To this complaint ' defendant entered a plea of not guilty and at the opening of the trial interposed an objection to the introduction of evidence, and after conviction, moved in arrest of judgment. The objections and motion were denied, and she was sentenced to imprisonment in the county jail.

Having been delivered into custody of the sheriff under such judgment she now seeks to be discharged by this court on habeas corpus contending that the complaint in the justice court did not state facts constituting a public offense.

The argument of counsel revolves around the two following sections of the Penal Code,—the one defining theft, and the other, the necessary averments of such offense. “Every person who shall feloniously steal, take, carry, lead or drive away the personal property of another ... is guilty of theft." (Section 484 of the Penal Code.) Section 1426 of the Penal Code provides in part, 1‘ all proceedings . . . before a . . . police court . . . for a public offense . . . must be commenced by complaint . . . setting for the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of. . . . In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another."

While the complaint before us was defective in that it did not set forth all of the facts essential to a proper description of the crime,—it not appearing to whom the property taken belonged,—it did allege the element of the crime of theft in that it charged petitioner with unlawfully taking the property of another.

Petitioner was entitled to the name of the owner of the property taken but the failure to set forth that fact did not thereby deprive the'police court of jurisdiction. It has frequently been held that while a writ of habeas corpus would lie when the complaint wholly failed to state a public offense, the writ cannot be made to serve the office of a demurrer. Petitioner, however, protected her right to appeal from the judgment of conviction by appropriate objections to the in