In Re Hemstreet

Petitioner was convicted upon a complaint filed in the justice’s court charging him with selling and giving to a minor under the age of eighteen years an intoxicating drink in violation of section 397b of the Penal Code. The verdict of the jury finding him guilty was rendered on November 23, 1910, and the time for rendering judgment was, in the absence of any waiver on the part of petitioner, postponed to November 26th, at which time, over his objection, judgment was rendered. Petitioner appealed to the superior court which, on account of the failure of the justice to pronounce judgment within two days after the verdict, granted a new trial, upon which he was again convicted. He bases his right to be discharged from custody upon the grounds: First, that the complaint failed to state an offense; and, second, that jurisdiction of defendant and the subject matter of the action was lost by reason of the justice failing to pronounce judgment within the time fixed therefor by section 1449, Penal Code.

The alleged vice of the complaint is due to the fact that it did not negative the exception contained in section 397b. This section provides: “Every person who sells, gives or delivers to…