In Re Vitalie

This is a petition for a writ of habeas corpus.

The petitioner is charged by a complaint filed in Montezuma township, Solano County, with the misdemeanor of catching striped bass by means of a net, in violation of section 628a of the Penal Code as amended in 1931. The complaint contains the following charge: “That said Prank Vitalie ... on or about the 30th day of August, A. D. 1931, at and in Sacramento River, in the said County of Solano, did then and there wilfully and unlawfully take and catch and kill striped bass other than with hook and line and in the manner commonly known as angling and did further then and there wilfully and unlawfully take, catch and kill more than five striped bass during said day.”

Upon this charge the ■ petitioner was taken into custody by the sheriff and is restrained of his liberty. The case has not been tried. This petition for a writ of habeas corpus was then instituted.

The petitioner claims he is entitled to be discharged from custody for the reason that the court is without jurisdiction to try the cause on the ground that section 628a, supra, is ambiguous and unconstitutional, since, (1) it prohibits the catching of striped bass with a net,…