Shermet v. Municipal Court

BISHOP, J. pro tem.* Petitioners, disappointed in their endeavor to put a stop to a prosecution against them on a misdemeanor charge, have appealed from the judgment discharging their alternative writ of prohibition and denying them a peremptory writ. We must take care, as we consider the contentions made, to remember that the question before us is not that to be decided in the misdemeanor prosecution, but that presented by this proceeding which would put a stop to the prosecution. We are persuaded that, whatever the fate of the prosecution may be, it has not been made to appear that it should not go on, and we are affirming the judgment putting an end to the attempted prohibition.

The legislative enactment upon which the prosecution rests is variously referred to throughout the record. It appears as an exhibit attached to points and authorities presented by petitioners’ attorney. This exhibit is captioned: “See. 43.01. Gambling—Dice Shaking” and begins with this recital:

“The following initiative ordinance is Ordinance No. 36674, approved June 5, 1917, by more than a majority of qualified electors of this City. The placing of this ordinance in this Code shall not be construed as altering, amending or repealing said ordinance. Any violation of the provisions of Ordinance No. 36674 shall not be deemed to be a violation of any of the provisions of this Code, but shall be deemed to be a violation of said Ordinance and punishable as therein provided. ’ ’

Following this recital we have:

“Ordinance No. 36,674

(New Series)

“An Ordinance prohibiting the shaking of dice for money or merchandise and prohibiting the keeping or permitting to be kept places for playing certain games in the City of Los Angeles not prohibited by Section 330 or 330a of the Penal Code, and prohibiting the playing or betting at such games.

“The People of the City of Los Angeles do ordain as follows:

“Section 1. It shall be unlawful for any person, either as principal, agent, employee or otherwise, to keep, conduct or maintain within the City of Los Angeles, any house, room, apartment or place used in whole or in part as a place where any game not mentioned in Section 330 or 330a of the Penal [167]Code of the State of California is played, conducted, dealt or carried on, with cards, dice, billiard balls, pools [sic] balls, cues or other device, for money, checks, chips, credit or any other representative of value or for any merchandise or any other thing of value. ’ ’