Ex parte Peterson , 119 Cal. 578 ( 1898 )

THE COURT.

The prisoner was convicted and is imprisoned upon a charge that he “did willfully and unlawfully use a shotgun of a larger caliber than that commonly known and designated as a No. 10 gauge, to wit, a No. 8 gauge.” This is in the language of the statute defining the offense (Pen. Code, sec. 627, as amended March 9, 1897; Stats. 1897, p. 92), but still it does-not sufficiently charge the offense, because the statute contains a qualification which it does not express. The legislature did not mean to make it a misdemeanor to use a Ho. 8 gun in any possible or conceivable way, or for any possible purpose. Talcing the whole context of the act, it is apparent that the intention-was to prohibit the use of guns of large caliber for the purpose of killing game or other animals. It is like the law prohibiting the drawing of blood in the street, which was properly held not to apply to the bleeding by a barber of a man who fell down in-a fit. In a prosecution under such a statute it is not sufficient, to follow its literal terms in charging the offense, hut the particular kind of use which the legislature intended to prohibit must he alleged. The charge, in other words, must he laid according to the true construction of the act, and must contain all the elements of the complete offense.

As the complaint did not state facts sufficient to constitute an offense, the justice had no jurisdiction and the prisoner must he discharged.

So ordered.

Garoutte, J., did not participate.