Daniel

The defendant August Lee Daniel hereafter called the defendant, was charged with being a “common drunkard” in violation of subdivision 11 of section 647 of the California Penal Code, known as the vagrancy statute.

He has never been arraigned. His counsel moved the court to dismiss the action upon the grounds that the court did not have jurisdiction of the matter, and that the statute under which he was charged is unconstitutional. The court dismissed the action, and filed a written opinion stating that he found the statute in question unconstitutional and in violation of due process of law. Prom that decision the People have appealed to this court pursuant to the authority of subdivision 1(a) of section 1466 of the Penal Code. If we should find the trial court to have been in error, the proper proceeding is to reverse and remand the ease to the trial court for further proceedings. (People v. Bing, 26 Cal.App.2d Supp. 768 [ 70 P.2d 281 ]; People v. Smith, 133 Cal.App.2d Supp. 777 [ 284 P.2d 203 ]; People v. Sevel, 122 Cal.App.2d Supp. 907 [ 261 P.2d 359 ]; People v. Garner, 120 Cal.App.2d Supp. 923 [ 264 P.2d 672 ].)

The question presented for our determination is whether or not…