People v. De Ferrari

The defendant was convicted of the offense of selling intoxicating liquor contrary to the provisions of an ordinance of Tuolumne County adopted March 15, 1921. This appeal is from .the judgment of conviction and the order denying defendant’s motion for a new trial.

The offense is alleged to have been committed on or about the fifteenth day of September, 1922. The information was filed November 10, 1922. The trial was commenced March 13, 1923. After the filing of the information and prior to the trial the Wright Act (Stats. 1921, p. 79), adopting the penal provisions of the Volstead Act (41 Stats. 305) went into effect. Section 2 of the ordinance defining the crime of which defendant was convicted is in the identical language of section 3 of the Volstead Act in so far as material to this case.

“A county ordinance punishing exactly the same act denounced by a state law is in conflict therewith and therefore, to that extent, void.” (In re Mingo, 190 Cal. 769 [ 214 Pac. 850 ], and cases therein cited.) It is clear that section 2 of the ordinance has been superseded by the state law. Had the Wright Act become effective prior to the commission of the offense, the prosecution of the…