Messick

Petitioner was convicted in the justice court of Douglas township, county of San Joaquin, of the offense charged in a complaint as follows:

He was sentenced to pay a fine of fifty dollars and in case of default in the payment to be imprisoned in the county jail until the fine should be satisfied at the rate of two dollars per day. He appealed upon questions of law alone to the superior court of said county wherein the judgment was affirmed. Thereafter he petitioned this court for a writ of certiorari, claiming that no offense was stated in said complaint by reason of the failure to allege that the act was done maliciously. It is to be observed that the charge is in the language of subdivision 8 of section 602 of the Penal Code as amended in 1917 (Stats. 1917, p. 319), but it is the claim of petitioner that the “head-note to the section [malicious injury to freehold], must be deemed a part of the substance of the act and accorded the same effect as though written into the body of the law.” This is a rule of general application recognized by the authorities, and ordinarily there is no question about its pertinency in order to determine the intention of the legislature, but herein…