THE PEOPLE v. THOMAS MAGUIRE, 26 Cal. 635

By the Court, Sanderson, C. J. This case has been brought up for review by certiorari from the County Court of the City and County of San Francisco.

It appears from the return that the defendant was arrested under a warrant issued by the Police Judge of the City and County of San Francisco, upon a complaint charging him with a violation of the Act entitled “An Act to prohibit barbarous and noisy amusements on the Christian Sabbath.” (Statutes of 1855, p. 50.) On his arraignment in the Police Judge’s Court, he demurred to the complaint on the ground that it did not state facts sufficient to constitute a criminal offense. The demurrer was sustained and a judgment dismissing the case was entered. Thereafter the District Attorney appealed to the County Court.

Upon the hearing, the County Court reversed the judgment and directed the case to be tried in that Court. Thereupon the defendant again demurred to the complaint upon the ground already stated, and upon the further grounds that two distinct offenses were improperly united, and that the County Court had no jurisdiction to try the case, but must remand it for trial to the Police Judge’s Court. The demurrer was overruled and the defendant was subsequently tried and convicted. The second

section of the Act under which this prosecution was instituted provides that “ Any person who shall get up, or aid in getting up, or opening of any bull, bear, cock or prize fight, horse race, circus, theatre, bowling alley, gambling-house, room or saloon, or any place of barbarous or noisy amusements on the Sabbath, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by fine not less than fifty nor more than five hundred dollars.” The complaint reads as follows : “State of California, City ancl County of Ban Francisco; Folice Judge's Court: “Personally appeared before me this 20th day of June, 1864, A.

J.

Hoyt, who deposes and says, that on the 19th day of June, 1864, at Pine street,, in said city and county, the crime of misdemeanor was committed, to wit: by Thomas Maguire, who then and there did wilfully and unlawfully, on the first day of the week, commonly called Sunday, to wit: on the Sabbath day, get up, and in getting up and opening of a theatre there, all of which is contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the people of the State of California; and said deponent accuses Thomas Maguire of having committed said crime, and prays that a warrant may be issued for the arrest of said Thomas Maguire, and that he may be brought before a magistrate and dealt with according to law.” That the foregoing complaint is inartificial and ungrammatical cannot be denied; but in our judgment it contains, in substance, a sufficient statement of the facts constituting the offense intended to be charged.

It substantially charges the defendant with getting up a theatre on the Sabbath day, at the time and place stated, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the people of the State of California. This is one of the offenses created by the Act in question, and the foregoing is a sufficient statement of the facts constituting it.

The statute enumerates several things which, being done upon the Sabbath day, shall be deemed a misdemeanor, to wit: bull fight, bear fight, cock fight, prize fight, horse race, circus, theatre, bowling alley, gambling house, gambling room, gambling saloon, and in addition thereto, any place of amusements which in their character are either noisy or barbarous. Every person who gets up either of these amusements on the Sabbath day, or aids in so doing, is declared guilty of a misdemeanor.

In stating the facts constituting either of these offenses, it is only necessary, under our system of criminal pleading, to follow as near as may be the language of the statute. (Wood’s Digest, p. 318, Sec. 608.) For example: “ State of California, County of-. Now comes A. B., who being duly sworn, deposes and says, that heretofore, to wit, on the-day of-, 186—, the same being Sabbath day, at the county aforesaid, one C.

D. did get up (or did aid in getting up, as the case may be), a horse race (or circus, or theatre, as the case máy be), contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of California.” All beyond the foregoing is matter of evidence, and1 need not be averred in the complaint. There is nothing in the point that the County Court could not entertain the appeal except upon a statement prepared as provided in

section 3, page 218, of the statutes of 1858. Assuming that sections two, three, four and five of that Act are applicable to appeals from the Police Judge’s Court of the City of San Francisco, there is no necessity for a statement where the record discloses the error relied on by the appellant. The

section in question does not apply to cases where the rulings of the Court, "alleged to be erroneous, appear upon the face of the judgment roll. Where the errors do not appear upon the face of the judgment roll a statement is made necessary because the errors can in no other way, except by a trial de novo, be brought to the notice of the appellate Court. But it seems by the provision contained in the sixth

section that sections two, three, four and five are not applicable to appeals from the Police Judge’s Court of San Francisco. Why this distinction was made is not readily perceived, but such is the express language of

section six, and it follows therefrom, that appeals from that Court to the County Court are left to be regulated by the law as it stood prior to the passage of that Act. By

section twenty of the Consolidation Act of the City and County of San Francisco it is provided that “ proceedings in the Police Judge’s Court shall be conducted in conformity with the laws regulating proceedings in Recorders’ Courts.” Those laws are found in Wood’s Digest at page three hundred and eighteen, commencing with

section six hundred and eight and ending with

section six hundred and fortyrone. We there find no provision for a bill of exceptions or statement of the case for the purposes of a trial in the appellate Court. An appeal to the County Court being given by

section four hundred and eighty-one, as amended in 18-58, and no special method being prescribed for getting up and trying the appeal, it necessarily follows that the appeal can only be heard by and through a trial de novo in the appellate Court. There has been no excess of jurisdiction on the part of the County Court, and the writ must be dismissed, and it is so ordered. Mr. Justice Rhodes expressed no opinion.