Opinion
Docket No. 2345.
February 23, 1933.
PROCEEDING in Habeas Corpus to secure release from custody. Petitioner discharged.
The facts are stated in the opinion of the court.
W.J. Galbraith for Petitioner.
Percy C. Hackendorf, District Attorney, for Respondent.
[1] It appearing from a consideration of the petition for the writ, and from the return to the writ heretofore issued herein, that the complaint filed in the justice's court did not state facts sufficient to constitute a public offense, and it further appearing that, for the reason above stated, the commitment under which petitioner is held in custody is void, it is ordered that the petitioner be discharged from custody. (Pen. Code, sec. 647, subd. 7.)
I dissent.
I dissent for the reason that the complaint herein alleges that the defendant "was then and there an idle person and did then and there lodge in an outhouse of the Biltmore Hotel, without the permission of the owner". There was no demurrer interposed, and it is my opinion that the allegation that it was without the permission of the owner would presume, in the absence of a demurrer, that it was without the permission of the person entitled to possession, by reason of the fact that the owner, unless the contrary is alleged or proved, is entitled to the possession of property. It would take evidence to show that the owner of property was not entitled to possession of property owned.