
    [Crim. No. 175.
    Third Appellate District.
    January 4, 1912.]
    In Re WILLIAM HENLEY on Habeas Corpus.
    Criminal Law — Inebriety—Affidavit for Arrest—Sufficiency— Habeas Corpus.—An affidavit for arrest, under section 2185c of the Political Code, enacted in 1911 (Stats. 1911, p. 396), which states that the person to be arrested “is so far addicted to the intemperate use of stimulants as to have lost the power of self- , control; that by reason thereof said person is a fit subject for commitment to a state hospital for the care and treatment of the insane, and ought to be confined therein as an inebriate, under the provisions of section 2185c of the Political Code,” corresponds substantially with the language of the statute, and cannot be held so deficient in showing that he belongs to a class contemplated thereby as to entitle him to be discharged on habeas corpus. f
    
    Id.—Loss of Self-control—Pact Inferred from Pacts Observed—. Matter of Knowledge or Observation.—The loss of the power of self-control and the intemperate use of stimulants are facts, though the knowledge of them may be the result of inference from other known facts; but they are so intimately connected with the observation of the appearance or conduct of the person as to be properly placed within the category of knowledge or observation, , rather than of opinion. They do not require the exercise of judgment so much as the faculty of perception.
    Id.—Opinion as to “Inebriety” Deduced from Pacts Observed— Ultimate Fact—Exception as to “Matter of Opinion.”—If the statement in the affidavit .of arrest that the accused is an “inebriate” is to be regarded as the statement of an opinion, it is merely the statement of an ultimate fact, deduced from facts observed as to the habits of the accused as to “intoxication,” and if the conclusion as to the ultimate fact involves matter of opinion, it falls within an exception to the general rule as to “matter of opinion” as thoroughly established as the rule itself.
    Id.—Bight of Admission to Bail Pending Examination—Showing of Danger to Safety Bequired.—Unless there is an affirmative showing of danger to the safety of one or to society in allowing the accused to be admitted to bail, he is entitled, under section 6 of article I of the constitution, to be admitted to bail until a hearing and examination can be had.
    PETITION for writ of habeas corpus to the sheriff of Sacramento County.
    The facts are stated in the opinion of the court.
    R. Platnauer, for Petitioner.
    J. Q. Brown, Deputy District Attorney, for Sheriff, Respondent.
   BURNETT, J.

We do not consider in point the cases cited by petitioner as to the publication of summons. Of these, Ricketson v. Richardson, 26 Cal. 149, is the pioneer and is typical of the others. Therein it is said that “It is not sufficient to state generally that after due diligence the defendant cannot be found within the state, or that the plaintiff has a good cause of action against him, or that he is a necessary party; but the acts constituting due diligence, or the facts showing that he is a necessary party, should be stated.” The propriety of so holding is apparent, as the consideration of “due diligence,” “a good cause of action” and “a necessary party” involves questions of law to be determined by the court after an examination of the facts.

Petitioner also urges that in case the said affidavit is considered sufficient to authorize the magistrate to issue the warrant, then he should be admitted to bail pending the examination of the charge. It appears that bail was denied by said magistrate, but upon what ground does not appear, nor is any reason advanced here for the order except that it is a matter of right under the provision of the constitution of the state that “All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.” (Art. I, sec. 6.) This is a wise and salutary measure, and the scope of it is sufficiently comprehensive to include a person charged with being an inebriate. His right as to bail should certainly not be more restricted than that of a person accused of a grave crime. In the latter contingency no question would be raised except in the. case of a capital offense as provided in the constitution.

There might be instances under this statute where, for the safety of the individual or of society, it would be proper to deny bail, but unless such a showing is made, the said provision of the constitution should be held, we think, to apply. It is provided in said statute that the officer to whom the warrant of arrest is delivered must “arrest and detain such person until a hearing and examination can be had.” This, of course, must be read in connection with said constitutional provision, as no one would contend that the legislative enactment could operate to modify or repeal any portion of the constitution.

It is ordered that petitioner be admitted to bail in the sum of $250 pending the examination, the bond to be approved by the Honorable J. W. Hughes, judge of the superior court of Sacramento county.

Hart, J., and Chipman, P. J., concurred.  