In Re Von Perhacs

Petitioner herein seeks his release on habeas corpus after judgment of conviction rendered in the justice's court of Tulare township, county of Tulare. In the justice court of that township petitioner herein was charged with and upon a trial by a jury was convicted of a misdemeanor arising out of an alleged violation of the provisions of the state Motor Vehicle Act. The complaint against petitioner charged that he "did on the 1st day of July, 1922, . . . at the county of Tulare, State of California, wilfully and unlawfully operate and drive a certain motor vehicle, to wit: an automobile, upon a public highway of said county of Tulare, in a reckless manner, and without due regard for the safety and convenience of other vehicles upon said highway, and the safety of property. . . ." The petitioner herein, defendant there, was sentenced to serve forty days in the county jail and to pay a fine of two hundred dollars. Upon appeal to the superior court of Tulare County the judgment was affirmed. *Page 366 [1] There is no merit in petitioner's contention that the complaint does not state facts sufficient to constitute a public offense. The law does provide such a penalty as is here…

The petition for rehearing is denied. [4] Habeas corpus may not be resorted to in lieu of a demurrer to a complaint in a misdemeanor case upon a ground of uncertainty, etc. The defect, if any, in the complaint in the instant case, for failure to specify the particulars of the offense charged, might have been remedied by demurrer, and if not by demurrer, then by motion in arrest of judgment as provided under section 1452, Penal Code. Lennon, J., Wilbur, C. J., Kerrigan, J., Waste, J., Myers, J., and Seawell, J., concurred. *Page 369