
    [Crim. No. 386.
    In Bank.
    January 11, 1898.]
    Ex Parte CHRIS P. PETERSON on Habeas Corpus.
    Criminal Law—Willful and Unlawful Use of No. 8 Shotgun—Insufficient Complaint—Purpose of Use—Statutoby Construction—Jurisdiction—Habeas Corpus.—Section 27 of the Penal Code, as amended March 9, 1897, making the willful and unlawful use of a shotgun o Jf a larger caliber than that commonly known as a No. 10 gauge a misdemeanor is not to be construed as making it a misdemeanor to use a larger shotgun in any possible way, or for any possible purpose, but, taking the whole context of the act, it was the evident intention of the legislature to prohibit the use of guns of larger caliber for the purpose of killing game or other animals, and, in a prosecution under such a statute, it is not sufficient to follow its literal terms in charging the offense, but the particular kind of use which the legislature intended to prohibit must be alleged; and a complaint charging the willful and unlawful use of a No. 8 shotgun merely in the language of the statute, is insufficient to show a complete offense, or to give a justice of the peace jurisdiction, and a defendant convicted under such complaint, must be discharged on habeas corpus,
    WRIT of habeas corpus from the Supreme Court to the sheriff of Fresno County, to test the validity of a judgment of the Justice’s Court of the Third Judicial Township of Fresno County.. S. C. St. John, Justice of the Peace.
    The facts are stated in the opinion of the court.
    V. G. Frost, for Petitioner.
   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.  